Who would have thought that India would need to tutor Australia on protecting individual human rights? Yet here we have the case of the Government of India summoning the Ambassador of Australia to remind his government of the need for due process in the treatment of an Indian doctor detained in Brisbane.

The case highlights the importance of a proper balance between civil liberties, individual human rights, and the responsibility of the state to protect inhabitants from terrorists. Before 9/11, western governments and human rights champions were prone to moral ambivalence between perpetrators of terrorism and efforts of legitimate governments to maintain national security and assure public safety. After 9/11, western governments began to view other countries' parallel wars against terrorism through the prism of a fellow-government facing agonising policy choices in the real world, rather than single-issue groups whose vision is not anchored in any responsibility for policy decisions. Many governments used to be at the receiving end of moral and political judgment about robust responses to violent threats posed to their authority and order from armed dissidents. They now get a more sympathetic hearing and mature understanding forged in the crucible of shared suffering.

This does not give any government a licence to trample rights won at great cost over many centuries: rights of people against governments. A human right, owed to every person simply as a human being, is inherently universal. Held only by human beings, but equally by all, it does not flow from any office, rank or relationship. The language of human rights embodies the intuition that the human species is one and every individual is entitled to equal moral consideration. It is vividly captured in the Second World War joke that they came after the workers; I was not a worker, so I did not object. They came after the homosexuals; I wasn't one, so I did not object. They came after the Jews; I wasn't one, so I did not object. Then they came after me: there was no one left to object.

Success in defeating terrorism can come only if we remain true to values that terrorists reject. It is possible to resort to the lesser evil of curtailing liberties and using violence in order to defeat the greater evil of terrorism, but only if we do not succumb to the greater evil of destroying the very values for which democracies stand.

The way to do this is to require of governments that they justify all restrictive measures publicly, submit them to judicial review, and circumscribe them with sunset clauses to guard against the temporary becoming permanent. The safeguards are especially important because the history of the great democracies themselves suggests that most people privilege the security of the majority over the harm done to minorities deprived of their rights in the name of national security.

After 9/11, some western democracies recalibrated the existing balance between national security and civil liberties in their laws and practices. American priorities shifted to subordinate human rights to victory in the ‘war' against terrorism. A counter-terrorism expert testified that "after 9/11 the gloves came off," while another official remarked that "if you don't violate someone's human rights, you aren't doing your job." There developed also the distasteful practice of "rendition to torture," sending prisoners to their home countries precisely because the latter were known to practise torture as a routine part of their interrogation.

Many other democracies joined the United States in shifting the balance of laws and administrative practices towards state security. In Australia, the post-9/11 hysteria was harvested by the government to introduce tough detention laws against illegal immigrants in defence of a policy of Fortress Australia that led to the detention of dozens of Australian citizens, one of whom was deported to her country of birth and another, a mentally ill woman, spent ten months in detention.

Thus terrorism has an impact on human rights in three ways. First, it is itself an extreme denial of the most basic human right, namely to life, and it creates an environment in which people cannot live in freedom from fear and enjoy their other rights. Secondly, the threat of terrorism can be used by governments to enact laws that strip away many civil liberties and political freedoms. One simple yet popular technique is to reverse the burden of proof: those accused of terrorist activities, sympathies or even guilt by association on the basis of accusations by anonymous people are to be presumed to be guilty until they can prove their innocence of unspecified charges. Thirdly, without necessarily amending laws or enacting new ones, governments can use the need to fight terrorism as an alibi to stifle dissent and criticism and imprison or threaten domestic opponents.

This is where the case of Dr. Mohamed Haneef is so very disturbing. On the evidence presented to the Brisbane court, he made the mistake of giving his prepaid SIM card to a second cousin in the United Kingdom because the card would not be of any use to him in Australia for whose sunny shores he was departing. The card was found in a car used by a terrorist a year later.

Hardly surprising that the magistrate granted bail. This is where the case gets curioser and curioser, as Alice remarked in her wonderland. Having spent 12 days in custody before being questioned, then granted bail pending trial, Dr. Haneef had his multi-year work visa cancelled on ‘character' grounds.

No country will strip its Immigration Minister of the power to cancel a visitor's visa. But the purpose is to prevent someone from entering or, if he is already in the country, to terminate his presence and deport him. In Dr. Haneef's case the primary motivation would appear to be to keep him in Australia under detention - and require him to pay for the privilege at the end of it all, even if he should be acquitted.

To top it all, the government has made it clear that Dr. Haneef will be deported even if he is ultimately found innocent. A case perhaps of guilty even if proven innocent?

It is hard not to infer that this is a case of a serious misuse of power and political interference in the process of criminal justice.

The dream of a world ruled by law is a shared vision. We must not privilege security and order to such an extent as to destroy our most cherished values of liberty and justice in the search for an unattainable absolute security. As Benjamin Franklin, one of the fathers of American independence, said, those who would sacrifice essential liberty to temporary safety deserve neither liberty nor safety.

The robustness and resilience of the civilised world's commitment to human rights norms and values will be judged in the final analysis not by the breaches in the aftermath of 9/11, but by the reversal and attenuation of the breaches through judicial and political processes as well as the pressure of domestic and international civil society. This is where the response of the Australian community to the prima facie abuse of executive power by the Australian Government is so reassuring: the legal fraternity, civil liberties groups, other sectors of society, and even the State Premier have either roundly condemned the extra-judicial detention of Dr. Haneef or demanded a public explanation from the government. The one disappointment has been the federal opposition Labor Party, which frightened of being wedged on an issue of national security, has once again resorted to "me tooism."

If and when Dr. Haneef is tried in a court of law, the trial will be about him: his beliefs, actions, and links to terrorism. The manner, forum, and rules of procedure of the trial are not about him, but about the quality and credibility of the Australian justice system. Specifically, does the Australian government believe in, respect, and abide by the rule of law or disregard it as a mere inconvenience when judicially tested? The question of indifference or active concern about Dr. Haneef's fate in a foreign land is about Indian values and beliefs. A failure by the government to demand justice for him would be an abdication of its responsibility to protect citizens.

Tough on terrorists. Tougher on the causes of terrorism. But toughest of all on safeguarding the virtues of tolerance, human rights, civil liberties, and due process.

 

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.