WHAT does the international community make of government attempts to give the police unprecedented powers to hold suspected terrorists without charge or trial for up to 90 days? When British politicians debated the proposal, Guy Mansfield, QC, chairman of the Bar Council of England and Wales, argued that such a move could damage the UK’s international stature as an ambassador for human rights. “Even temporary loss of liberty has long been regarded as requiring the highest justification,” he said. “We cannot allow these very difficult times to lead us to depart from the standards that make this country a great democracy and a beacon of freedom and civilised standards.” UK campaigners may see the Terrorism Bill as “draconian”, but how does the rest of the world perceive such measures? And is the UK still “a beacon” for human rights anyway?
RICHARD GOLDSTONE
“My experience in South Africa indicates that this sort of provision is a huge violation of human rights,” Richard Goldstone, a retired justice of South Africa’s Constitutional Court and former chief prosecutor of the international tribunals for the Former Yugoslavia and Rwanda, says.
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He compares the British Government’s proposals to the laws that upheld the apartheid regime, and which he campaigned against. “Frequently, people were picked up when innocent and to be held for 90 days is a very unfortunate experience for anybody,” he says. The former judge believes that the UK proposals are “unnecessary”. He argues: “Certainly, the Government should not need that sort of time and, if they claim that they do, there should be provisions for judicial intervention before that period expires.”
Goldstone was far from disheartened by the parliamentary debate last month. “It was a huge boost to the upholding of human rights that the members of the Labour Party revolted and the legislation didn’t go through,” he says. “That was an important demonstration of democracy working and a moment that buoyed human rights supporters around the world.”
But does it matter to other countries what the UK does? Goldstone believes that it does. “There have been some unfortunate regressive steps, particularly in the United States but also other democracies, which are having an unfortunate knock-on effect,” he says. “A lot of dictators are saying, ‘If this is what leading democracies are doing, then who is going to criticise us?’ ”
Goldstone points out that a South African parliamentary sub-committee recently threw out an attempt to introduce 90 days’ detention. Is he surprised to see a Labour government introducing such measures in the UK? “Absolutely,” he replies. “The Labour Party throughout the apartheid years was certainly a beacon for anti-apartheid leaders and activists in South Africa.”
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PARAM CUMARASWAMY
“In my law school in London I learnt what Lord Mansfield said, Fiat justitia, ruat coelum — ‘Let justice be done, though the heavens fall’,” reflects Param Cumaraswamy, the former UN special rapporteur on the independence of judges and lawyers. The Malaysian lawyer, who read law at the Inns of Court and was admitted as a barrister by the Inner Temple in 1966, regards the 90-day proposal as “draconian” and the Government’s attitude towards the law as a long way from Lord Mansfield’s ideal.
Cumaraswamy argues that detention without trial “offends the first principle of the rule of law”. He believes: “While terrorism itself is a threat to the rule of law, countering it by an enactment conferring police powers of detentions up to 90 days is just not the way.” That such an attempt was made by the British Government, “which championed the rule of law in the Commonwealth”, is “beyond belief”.
Administrative detentions are manifestly unfair and unjust, the lawyer reckons. “It offends the conscience of all good men and women and will be regarded as oppression,” he says. “Oppressive laws do not win the confidence of the people.” The lawyer says that Malaysia and Singapore remain “sad examples” of such laws. “In the past the British and the US governments were always heard to be critical of detentions under these laws. Now, these champions of democracy and the rule of law are seen resorting to the same draconian measures.”
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FALI SAM NARIMAN
The idea of detention without charge is nothing new to India. “We have had preventive detention, as we call it, ever since we’ve had a constitution,” Fali Sam Nariman, a senior advocate in the Supreme Court of India and President of the Bar Association of India, says. He points to Article 22 of the Constitution that was introduced to keep in check the threat of the “Communist menace”. While that threat may have been genuine at the time, it has been consistently abused in the name of national security ever since, he says.
Nariman is bemused by the debate of UK politicians over whether an acceptable period of detention is 14, 28 or 90 days. “The point is not the number of days, but the very fact that you are putting away people on the vaguest suspicion for a sizeable period of time. That is the noxious thing,” he says. “Once you go down that slippery slope, there is no end to the cutting of corners.”
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The lawyer takes the view that the threat of terrorism does need to be addressed by special powers. “Something has to give, and perhaps that something has to be the right to silence,” he argues. “I don’t see why people charged with such a serious offence can just sit quietly by.”
As a member of the Commonwealth, is it significant that the United Kingdom is considering such laws? “It is true that the UK has been a beacon light, a lamp of liberty, and one government does pick up practices from another government,” Nariman says.
He was struck by a postscript in the judgment of Lord Hoffmann in the House of Lords’ ruling that the indefinite detention without trial of 12 terrorism suspects at Belmarsh breached human rights laws. “The real threat to the life of the nation, in the sense of people living in accordance with its traditional laws and political values, comes not from terrorism but from laws like these,” Lord Hoffmann said. Nariman describes himself as more “exasperated” than surprised that the UK was considering 90-day detention without charge. “If you follow the Chinese system of rule by law, instead of rule of law, then you’re in trouble,” he comments.
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BASIL FERNANDO
The executive director of the Hong Kong-based Asian Human Rights Commission, Basil Fernando detects a disturbing parallel between the UK and what has happened in his home, Sri Lanka. “There was an attempt by police officers to telephone Members of Parliament to support your legislation which really shocked me,” he says. “It is exactly what happened in my country. The police become politicised and there’s a link established between the police and the politicians for strengthening the powers of each other.” His group has just published a report alleging “a pattern of systematic torture taking place at police stations and during routine criminal investigations” throughout Sri Lanka detailing 60 such cases.
Fernando sees the politicisation of the police as having an “endlessly demoralising impact” on the people. He reports that witnesses are increasingly reluctant to come forward because they do not trust the police. “The conviction rate in normal trials used to be about 40 per cent and now it is between 2 and 4 per cent,” he reports. “People are losing confidence in the police, and much of the evidence that may be obtained through torture is useless if there is a fair trial.”
What did he make of the British Government considering 90 days’ detention? “I’m surprised because I’m a lawyer bought up in the Commonwealth law tradition,” he replies. He says that the UK, as recently as when the law lords denied immunity to General Augusto Pinochet, Chile’s former dictator, was regarded as “a beacon”. He says: “It was a great relief when the House of Lords said that it had the jurisdiction to try Pinochet on the basis of allegations relating to torture and human rights abuse. But the UK’s image has begun to be shaken.”
Does what is happening in the UK have an effect for human rights advocates in Asia? Fernando reports that he has been in conversation with governments in the region post-9/11 and asked them what they will do to protect civil liberties. “They will politely turn my question back to me and say, ‘If countries like the US and the UK can’t do without these laws, do you think poor countries like ours can afford to have this nice thing, the rule of law?’ ”
MICHAEL POSNER
“We know there are many governments — from Mugabe’s in Zimbabwe to Putin’s in Russia — that are looking for excuses to detain political opponents without charge or trial, and to be able to cite British or American examples doing that gives them an easy excuse to misbehave.”
This is the view of Michael Posner, executive director of the US group Human Rights First (formerly the Lawyers Committee for Human Rights). He welcomes that the Commons inflicted a defeat on the Terrorism Bill. “It is a sign that democracy is alive and there is genuine internal debate within the country,” he says.
Ninety-day detention is a mistake, he says. “In the US, and for a longer time in the UK, there has been a debate that we are in a new world and notions of fighting terrorism and national security trumps traditional notions of law,” he says. “There is a war against terrorism on the one side and law on the other hand, and the notions of law have become a luxury and not a necessity.”
The US has stopped short of preventive detention, but Posner points to Guantanamo Bay where people have now been held for close to four years without a formal trial, as well as “some 12,000 people detained in Iraq or Afghanistan”. He says: “We have major problems here. It is incumbent upon countries such as the UK and the US to uphold the highest standards and to recognise that if you are serious about preserving national security, which every government needs to be, that there are important things that need to be done not to undermine core civil liberties.”