By Mark Hemery*
The thing people care most about is their family’s safety. Today, fear of a terror attack looms large in the minds of many people. But should our government be allowed to use any means necessary to keep us safe from terrorists?
Not many things bring me to tears. One is when innocents are the victims of a senseless act of brutality. Like 9/11. The Bali bombings. The Christchurch shootings. There seems to be no end to these tragedies.
At times like these, like most people, I find myself thinking: If only we could have done something to have prevented this? And: Maybe we can do something to stop it ever happening again?
After the holocaust, the world community, in its collective shock and grief, pondered such questions. In the many decades since, human rights have been slowly and gradually recognised in international and domestic law throughout the world.
So, what are human rights? The theory is they are inherent to all humans, and universal. They also are claimed to be inviolable. In other words, if fully implemented, human rights trump all other “mere” legal rights. This means they trump not only the rights of our fellow civilians, but also the rights exercised by government officials.
The almost universal recognition today of human rights undeniably has changed our world for the better. Thankfully, no-one in any western nation today reasonably fears genocide at the hands of their own government. We do, however, reasonably fear violence from terrorists.
Do terrorists have human rights? Yes, of course. If human rights are to mean anything at all, we must allow them both for ourselves and for those who might do us harm.
Take torture. The right not to be tortured is a recognised human right. If our government is investigating a planned terrorist attack, the use of torture to extract information that might prevent the attack would breach the terrorist’s human rights. Those rights would trump any “mere” legal right the government might claim to have to use torture.
As Abu Graib and waterboarding by the CIA shows, when the rubber hits the road, human rights tend to lose their “trump card” status. Does this matter? For some people, maybe not. Perhaps intelligence agencies should have the weeniest bit of discretion to disregard human rights when there is “clear and present danger”? That will keep us safe, right?
For many people, terrorists, by just being terrorists, forfeit their human rights. Yet, the hypocrisy of government picking and choosing whose supposedly universal and inviolable human rights should be respected, is not lost on some of us.
To address these worries, it has long been proposed to give human rights “teeth” by entrenching them in a constitutional bill of rights. The overzealous legislator or investigator could then be “trumped” in the High Court.
While well-intentioned, sadly this proposal is utopian and unrealistic, for three reasons:
Firstly, a super-majority of the electors must vote for it. History has shown that referenda very, very rarely succeed, for even a modest constitutional change. A proposal that could allow unelected judges to halt a democratically-elected government’s handling of a national security emergency, well…?
Secondly, absolute constitutional guarantees of basic rights in the US have always been “read down” by courts to allow governments “wiggle room”. The emergency exception to the absolute guarantee of freedom of speech in the US constitution is a good example.
Thirdly, in a perceived emergency, where time is of the essence, government decision-makers will have a powerful personal incentive to preference public safety over legality. No world leader wanted to be the one with blood on their hands when armed with intelligence that Saddam Hussein held weapons of mass destruction.
Must we resign ourselves to trusting the government to do the right thing when it comes to the human rights of those we fear most? The answer is: No. There are two kinds of safeguards that can reconcile the need for government action with due respect for human rights.
The first are civil liberties under common law. In an earlier age, these were known as the rights of Englishmen. One of those rights is the right to a fair trial. What does this have to do with torture? Well, for over 500 years, an accused’s common law right to a fair trial has precluded conviction on evidence obtained by torture.
Common law has a serious limitation as a safeguard against government human rights abuses. It only provides “procedural” restraints on how the government may act. It does not provide “substantive” restraints on what the government may do.
So, the right to a fair trial does not imply a right not to be tortured by a government agent. All it means is that if you are tortured to obtain a confession, you will not be convicted. Unless, of course, there is other evidence against you.
The second safeguard, therefore, is legislation that provides “substantive” civil liberties; enforceable restraints on what government may do. What is the state of play here? Does Australian statute law, for example, prohibit a terrorist suspect from being tortured by a government agent?
The Australian legislation relevant to government torture is found in each government agency’s enabling statute, in the clauses defining its “powers and immunities”. Some statutes have the clear effect of prohibiting torture. For example, ASIO agents have an immunity from civil and criminal proceedings for acts done in good faith. The immunity does not apply to conduct that “constitutes torture”.
In other instances, the prohibition of torture is less clear. Gaps, therefore, remain in the “substantive” civil liberties contained in legislation. And even where gaps have been closed, they can very quickly open again…particularly in times of crisis when politicians are under pressure to “do something.”
It is our common law and statutory civil liberties, therefore, that are the best available safeguards of our human rights, which of course includes the human rights of terrorists. These safeguards, however, are not entrenched in our Constitution. They are always at the mercy of the legislator’s pen.
Those of us who care about civil liberties, therefore, counsel “eternal vigilance”. This means:
- monitoring existing legislation;
- commenting on bills;
- lobbying politicians;
- making submissions to inquiries;
- writing articles;
- speaking about liberties and rights to family, friends, neighbours and colleagues…
- and, of course, trying to persuade our fellow citizens to join us in caring.
This is a tough ask. Instinctively, most people preference safety over liberty. Not because they do not value liberty; they do, very much. But because they do not think they have anything to fear.
After all, none of us (or I imagine only an infinitesimally small proportion of us) are planning a terrorist attack any time soon.
For this reason, it is unrealistic for civil libertarians to expect to ever win the hearts and minds of the public at large to our cause. And that’s fine. The important thing is that we continue to care, even if most others don’t.
*Mark Hemery is a lawyer and CLA member from Perth WA.