The Hindu : Opinion / Editorials : FOR LIBERTY'S SAKE

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Thursday, Dec 23, 2004

Opinion

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FOR LIBERTY'S SAKE

IN RULING THAT the indefinite incarceration of non-citizens suspected of `terrorism' is a violation of the European Convention on Human Rights (ECHR), the United Kingdom's Law Lords have taken a timely sledgehammer to the authoritarian edifice of `anti-terrorist' legislation erected by the Blair Government in the wake of 9/11. The British Anti-Terrorism, Crime and Security Act, 2001 gave sweeping powers to the executive to certify individual foreign nationals as terrorists and detain them indefinitely, justifying this derogation from the ECHR on the ground that these `terrorists' posed an imminent threat to the "life of the nation." Nine of the 18 men — all non-British Muslims — currently in detention moved the Law Lords, challenging the validity of the 2001 Act in the light of Britain's adherence to the ECHR. Some of them have been in prison for three years and at least two of the detainees have become insane. Lord Bingham, who wrote the 8-1 verdict allowing the challenge, alluded to a Kafkaesque situation: "None of the men has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect."

In their 102-page verdict, the Law Lords have justly observed that the case involved one of Britain's most cherished liberties — freedom from arbitrary arrest and incarceration. While several of the Lords took strong exception to the suspension of habeas corpus protection for non-citizens, most found the Act bad on the narrow — and somewhat problematic — ground that it discriminated between terrorists who were foreign nationals and those who were British citizens. "The government," wrote Lord Nicholas, "has vouchsafed no persuasive explanation of why national security calls for a power of indefinite detention in one case [foreign nationals] but not the other [British citizens]." And Lord Bingham wrote: "What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another." Lords Hoffmann and Scott hastened to add that this did not mean the same bad law should now be extended to British citizens!

"Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom" than detaining people indefinitely without charge or trial, wrote Lord Hoffmann in what is arguably one of the most stirring judicial verdicts in defence of liberty in recent years. Questioning the claim that Al-Qaeda represented a threat to the very life of the British nation, the Law Lord held that while the Government had a duty to protect the lives and property of its citizens, it is a duty "which it owes all the time" and which it must discharge "without destroying our constitutional freedoms." Lord Hoffmann's is a line of judicial reasoning governments round the world, including the U.S. and Indian, would do well to study: "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.'' So far, it seems, that is precisely what the Blair Government intends to do, with at least one senior Minister saying the Act will be amended to override the Law Lords' ruling. This is, in fact, unnecessary since the 1998 Human Rights Act, which gave British courts the right to declare a particular law incompatible with the human rights of persons in the country, does not allow the law to be declared invalid. Will Prime Minister Tony Blair pay any respect to the Law Lords' sagacity and do something about the vicious provision for indefinite detention?

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