Nancy Anderson, ContributorTHE POWER to deport
foreigners is extremely wide in the United Kingdom.
The Home Secretary must also reasonably suspect that the detainee was involved in various activities or exhibited certain attitudes.
The House of Lords sat in a specially-convened committee of nine Law Lords on December 16, 2004 and, in a blow to the government's anti-terror measures, the House ruled by an eight to one majority that detaining foreign terrorist suspects without trial is incompatible with the human rights of persons in the country.
Lord Hope of Craighead in his judgment in favour of allowing the appeal states: "Two cardinal principles lie at the heart of the argument. It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy and it is the duty of the court to do all it can to respect and uphold that principle. But the court has another duty too. It is to protect and safeguard the rights of the individual. Among these rights is the individual's right to liberty."
ARBITRARY ARREST
These are words that have equal relevance to Jamaica. The duties respectively of the courts and the government are to support the principle of the freedom from arbitrary arrest and detention which is enshrined in our constitution.
Lord Hoffman agreed as well with the majority and adopted the statement of the background and the issues set out in the speech of Lord Bingham of Cornhill who wrote the major judgment in the House of Lords.
Lord Hoffman had this to say: "The technical issue in this appeal is whether such a power can be justified on the ground that there exists a 'war or other public emergency threatening the life of the nation.'
"Freedom from arbitrary arrest and detention is quintessentially a British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. The exceptional power to derogate from those rights also reflected British constitutional history.
"There have been times of great national emergency in which habeas corpus has been
suspended and powers to detain on suspicion conferred on the government.
"It happened during the Napoleonic wars and during both world wars in the 20th century. These powers were conferred with great misgiving and in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised."
THREAT TO THE 'LIFE'
Lord Hoffman goes on to speak on what is meant by "threatening the life of the nation," the words used in Article 15 of the European Convention on Human Rights.
He concludes: "When one speaks of a threat to the 'life' of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and
values, endure through generations. Of course, the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.
"The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of the nation. 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."
Words similar to these have been used in the presentations to the Joint Committee of Parliament on the Terrorism Prevention Bill here in Jamaica and they are applicable to our situation.
We cannot afford to have a law that restricts the freedoms of citizens and denies citizens the protections enshrined in our constitution merely because of a vague threat of terrorism.
We may also find that the threat is from these laws and not from the terrorists. It is indeed for Parliament to decide whether to give the terrorists such a victory!
Nancy Anderson is an
attorney-at-law and a member
of the Independent Jamaican Council of Human Rights.
