UPHOLDING HUMAN RIGHTS AFTER 11 SEPTEMBER, 2001: THE EMPIRE STRIKES BACK*
The Hon Justice Michael Kirby AC CMG**
A CENTURY OF TERRORISM The events of 11 September 2001 in the United States and of 12 October 2002 in Bali brought home to the world, and to the Asia/Pacific region, the challenges that acts of terrorism present when combined with new means of causing destruction and with global media to cover the suffering.
Yet, terrorism is not new. The twentieth century - when the Australian Constitution came into force, and when Australia, New Zealand and Fiji attained nationhood within the Commonwealth and when the British empire reached its peak and then declined - was a century of terrorism. It was not always so perceived. Yet from the early days - from the anarchists and communists in 1901 through the colonial unrest that followed - that was the reality.
The Great War began in 1914 with an act of terrorism. The reality struck home within the British Isles in the Easter Rebellion in Dublin in 1916. Not a year of the century was free from acts of terror. Mahatma Gandhi deployed a very skilful combination of passive resistance, sporadic violence and political showmanship, ultimately to lead India, the jewel in the Crown, out of British rule. Mohammed Ali Jinnah did the same with Pakistan, obliging the division of the sub-Continent that has since witnessed unrest as a consequence. Nelson Mandela carried forward, over many decades (most of them in prison on Robben Island), his leadership of the African National Congress (ANC), modelled on that of India. For decades the ANC was branded a "terrorist" organisation. What did these three leaders have in common? All were lawyers1. All were gifted communicators. Gandhi and Mandela at different times were even prisoners in the same prison, near where the Constitutional Court of South Africa now proudly stands near Johannesburg in South Africa.
Other "terrorist" movements were led by people who refined their skills on the battlefield - Mao Tse Tung, General Giap, Ho Chi Minh, Colonel Boumédienne, Gamel Abdel Nasser. Around the world, as the old European empires crumbled, terrorists struck at their quarry. They did so against the new autocratic Nazi and Soviet empires and were repaid with fearsome reprisals. They did so against the comparatively benign British empire in Palestine, Kenya, Malaya, Aden, Cyprus and elsewhere. They attacked the faded glories of France in Algeria and Vietnam. The new empires that took the place of the old were then themselves attacked, as in East Timor, Chechnya, Kosovo and West Irian,. Terrorists mounted separatist campaigns in Northern Ireland and Quebec. Our own region has not been spared. The successive coups in the Fiji Islands involved unconstitutional and violent means. Bougainville, the Solomons and East Timor came uncomfortably close to collapse.
In my youth I followed the Cyprus campaign of General Grivas. He was a commander of no more than 250 EOKA terrorists with extreme nationalist sympathies, demanding union with Greece. Those few ultimately drove 28,000 British troops from the island by destroying their political capability to wage war2. In Australia, we regarded them as terrorists. In 2004, an attempt to resolve the last vestiges of that conflict failed because of intransigence on the part of the Greek-speaking portion of Cyprus and the ineptitude of the European Union in admitting that portion to the European Union before settlement of the division of Cyprus. The fate of the French in Algeria was similar. The same has not proved true of Northern Ireland. Whereas the "colons" in Algeria constituted only 2% of the population, the overwhelming majority of the Muslims in that country had a common interest in forcing their increasingly desperate and violent French rulers to leave3. Eventually they succeeded. In Northern Ireland, there always were, and still are, substantial numbers in each of the divided communities who found continuing connection with the United Kingdom acceptable and terrorism unacceptable4.
Why did the Red Brigades in Italy and the Baader-Meinhof faction in Germany fail to undermine liberal democracies when other terrorist groups succeeded? Are there any lessons for the law in the way different societies have tackled terrorism? Are there lessons for Commonwealth countries as we address our own security after the events of 2001 and 2002?
The story of Uruguay is particularly instructive. Before 1974, it was one of the few stable constitutional democracies of Latin America. It had adopted a new and stronger constitution in 1967. That document incorporated rule of law and human rights principles that were impeccable. But then Uruguay suffered a serious economic downturn that threatened its welfare laws. On top of this, it had to grapple with a challenge from a small determined band of terrorists known as the Tupamaros.
The Tupamaros resorted to indiscriminate acts of violence and cruelty that shook Uruguayan society. The citizens, and especially the military, began to look around. Coups had occurred in Brazil in 1964, in the Dominican Republic in 1965, in Chile in 1973. In Uruguay, in 1974, the military, police and their supporters struck.
After the coup, one by one, the constitutional guarantees of Uraguay were dismantled. More than 5,000 civilians in a country of fewer than 3 million inhabitants were incarcerated for very long prison terms on charges of committing political offences. Other detainees were kept incommunicado. The remedy similar to habeas corpus was gradually withdrawn. Immunity was granted to officials against an ever broader range of illegal acts. The country that had been known as the "Switzerland of Latin America"5 entered a period of escalating lawlessness. At first, the strong governmental tactics had support in the general population, out of fear of the Tupamaros. But increasingly unaccountable power bred oppression. True, the Tupamaros were defeated. But it took fourteen years and an enormous struggle to return Uruguay to constitutionalism6. Even then, there had to be amnesties for the military, police and other officials. A deep scar was left on the body politic.
The Commonwealth countries of the Pacific have had nothing like the threats of terrorism in Cyprus, Algeria, Northern Ireland or Uruguay. Naturally, everyone wants to keep it that way. Yet at the Commonwealth Heads of Government Conference in Sydney in February 1978, a bomb was detonated on Australian soil and three people killed. The Bali bombing on 12 October 2002 led to soul searching over the suggested failure of Australian officials to alert tourists about a terrorist risk in Bali. One of the most notable consequences of Bali was a close and highly professional co-operation between the Indonesian police and Army and the Australian Federal Police. This was followed by outstanding forensic analysis proved in the trial of those accused of the Bali offences.
Earlier, in relation to the Hilton bombing in Sydney in 1978, the shock led to what one analyst called "[a] synthetic panic which gripped the government (and was exploited by the media)"7. Leading officials "accepted without question the assumption that there was a real and present [terrorist] threat in Australia"8. Subsequent events showed that this was wrong. Following Bali, there was less panic; just pain and grim resolution.
The Hilton bombing in Australia led to inquiries9 and legislation10. Justice Hope, the Royal Commissioner, found that there was little evidence that Australia's security organisations had the qualities of mind necessary for what he called the "skilled and subtle task" of intelligence assessment11. This was unsurprising to those in the know. Earlier inquiries into the special branch files of State police in New South Wales and South Australia - the latter conducted by Justice Michael White12 - found ludicrous biases in the identification of the supposed threats to security. According to Justice White, all State Labor leaders automatically became the subjects of index cards as suspected "subversives". As he put it, "Like the Maginot Line all defences against anticipated subversion, real or imagined, were built on one side"13.
This course of conduct reflected, in the antipodes, the preoccupations of the Federal Bureau of Investigation in the United States where the ratio of files on left versus right-wing suspects and organisations was a hundred to one14. The Police Commissioner of South Australia at the time defined subversion as "… a deliberate attempt to weaken public confidence in the government"15. But this is exactly what, in a constitutional democracy, Opposition parties are supposed to do and do all the time. The criticisms of the Australian intelligence services 25 years ago and more recently bear comparison with the contemporary criticism of those services by the Committee of the United States Senate16 and the Butler Inquiry in Britain. In Australia, a report has been given on the same subject by a retired senior official, Mr Philip Flood.
So if we ask why did terrorism succeed in Cyprus and Algeria but had only limited success in Ulster and Quebec and failed abysmally in Italy, America (and to the extent that it has occurred) Australia and the Pacific, the answers are complex. Yet answers there are. The most important answer is that those societies have succeeded best against terrorism that have refused to play into the terrorists' hands. They have rejected the terrorist paradigm. As the Rand Corporation's analyst, Brian Jenkins pointed out "Terrorists want a lot of people watching and a lot of people listening and not a lot of people dead"17. They want publicity, the last thing that most perpetrators of non-political violence seek. Terrorists form a symbiotic relationship with the modern media. They create media events. Kidnapping, hijacking, beheadings and suicide bombs introduce elements of high tension, as does indiscriminate brutality18.
The media in free societies must, and will, cover such events. Indeed, the electronic media is now particularly well adapted to presenting vivid images, including sites of death and suffering. But keeping such visual horror in perspective is an important clue to defeating terrorists at their game. So is keeping one's sense of balance and priority. So is analysing the reasons, that may lie behind some the acts of terror, to decide whether some of them may reflect grievances that need to be addressed.
According to Justice Hope's Australian review, 1652 deaths could be attributed to international terrorism, between 1968 and 197719. Such losses, appalling though they are (and worse still when they are multiplied somewhat as they have lately been), pale into insignificance beside other global causes of death and suffering. The 20 million dead from HIV/AIDS. Dead to the general indifference of humanity. The millions dying, mostly in developing countries, from nicotine dependence and its consequences. From malaria or tuberculosis. From lack of water and food. Millions dead in state-run wars. Millions in refugee camps. Anonymous dead and living. Few vivid images. Boring reality. No media interest. No news. Relatively little political appeal. Victims of compassion fatigue20. As the Secretary-General of the United Nations, Kofi Annan, told the BBC during the 2004 conference on AIDS in Bangkok21:
"We hear a lot about terrorism, and we are warned about weapons of mass destruction because of their potential to kill thousands of people. Here we have an epidemic that is killing millions. We really do need leadership".
The countries that have done best against terrorism are therefore those that have kept their appreciation of priorities, retained a sense of proportion, questioned and addressed the causes of terrorism, and adhered steadfastly to constitutionalism and the rule of law.
INTERNAL SECURITY & THE COMMUNISTS Fifty years before 11 September 2001, the Australian Constitution received what was probably its most severe internal test in peacetime. The enemy then was viewed as a kind of global terrorist and widely hated. This enemy's ideas were subversive, the methods threatening and the goals alarming. I refer to the communists. The communists did not fly commercial aircraft into buildings in crowded cities. But they did indoctrinate their young. They had many fanatical adherents. They divided the world. They were sometimes ruthless and murderous. They developed nuclear and biological weapons. They had a global network. They opposed our form of society.
Out of fear, governments around the world rushed to introduce legislation to increase powers of surveillance, restrictions on democracy and deprivations of civil rights. In South Africa, the Suppression of Communism Act 1950 became, before long, the mainstay of the legal regime that underpinned Apartheid and brought forth Nelson Mandela and the ANC "terrorists". In Malaya, Singapore and elsewhere, the colonial authorities introduced the Internal Security Acts, which is what the South African Act was also later called. Sadly, many of those statutes remain in place, post-independence, to oppress those of dissident opinions.
In the United States of America, the Smith Act was passed by Congress to permit the criminal prosecution of members of the Communist Party for teaching and advocating the overthrow of the government.22 The law was challenged in the courts of the United States. The petitioners invoked the First Amendment guarantees of freedom of expression and assembly. But in 1950, in Dennis v United States23, the Supreme Court of the United States, by majority, upheld the Smith Act. The Court held there was a "sufficient danger to warrant the application of the statute … on the merits"24.
Dissenting, Justice Black drew a distinction between overt acts designed to overthrow the government and punishing what people thought and wrote and said25. The latter, he held, were beyond the power of Congress. Also dissenting, Justice Douglas acknowledged the "popular appeal" of the legislation26. But he pointed out that the Communist Party was of little consequence in America27:
"Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or State which the Communists could carry. Communism in the world scene is no bogeyman; but communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party".
A few months after Dennis was decided a similar challenge came before the High Court of Australia. There was no First Amendment. There was no established jurisprudence on guaranteed free expression and assembly. Most of the judges participating in the case had had no political experience. Most of them were commercial lawyers whose professional lives had been spent wearing black robes and a strange head adornment. An Australian contingent was fighting communist regimes in Korea28. The Australian government had a mandate for its law. Most Australians saw communists as the bogey-man - indeed the communist doctrine of world revolution and the dictatorship of proletariat was widely viewed as a kind of political terrorism.
Chief Justice Latham, like his counterpart in the United States, upheld the validity of the anti-communist law. He quoted Cromwell's warning: "Being comes before well-being"29. He said that his opinion would be the same if the Parliament had legislated against Nazism or Fascism. But the other members of the Court rejected the law30. Justice Dixon pointed out that31:
"History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power … [T]he power to legislate for the protection of an existing form of government ought not to be … only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend".
So far as Dixon was concerned it was for the courts to ensure that suppression of freedoms was only imposed within the law. The Constitution afforded ample powers to deal with overt acts of subversion. Responding to a hated political idea and propagation of that idea was not enough for the validity of the law.
Given the chance to vote on a proposal to change the Australian Constitution with respect to communists and communism, the people of Australia on 22 September 1951, refused. When the issues were explained, they rejected the proposed enlargement of federal powers. I believe that history accepts the wisdom of the response in Australia and the error of the over-reaction of the United States32.
Keeping proportion. Adhering to the ways of democracy. Upholding constitutionalism and the rule of law. Defending, even under assault, and even for the feared and hated, the legal rights of suspects. These are the ways to maintain the support and confidence of the people over the long haul. Judges should not forget these lessons. In the United States, even in dark times, the lessons of Dennis and of Korematsu33 need to be remembered34. Every erosion of liberty must be thoroughly justified. Sometimes it is wise to pause before acting precipitately. If emergency powers are clearly required, it may be appropriate to subject them to a sunset clause – so that they expire when the clear and present danger passes35. For Commonwealth countries in the Pacific we should keep our sense of reality and remember our civic traditions, as the High Court Justices did in Australia in the Communist Party Case of 1951. That approach remains, I would suggest, the model for the responses that should be taken by judges to allegations of terrorist offences, to the operation of contemporary anti-terrorist laws and to the assertion that the Executive needs more and more powers. As in 1951, the answer that should come back is: judicial business as usual; human rights upheld; the rule of law maintained.
THE EMPIRE STRIKES BACK New terrorism laws: Laws specifically targeted at the risks of violence perpetrated by enemies, including foreign enemies, are by no means new. In 1939, the United Kingdom Parliament enacted the Prevention of Violence (Temporary Provisions) Act of that year to deal with a campaign of the Irish Republican Army36. That law was allowed to expire, an event described as "an act of faith without contemporary parallel"37.
There followed in Britain a number of laws enacted to respond to the violence in Northern Ireland. These laws included the Northern Ireland (Emergency Provisions) Acts 1973-98 (UK), the Criminal Justice (Terrorism and Conspiracy) Act 1998 (UK) and the Prevention of Terrorism (Temporary Provisions) Acts (UK) in continuous use between 1974 and 2001. The counter-terrorism laws of the United Kingdom were reviewed by a judicial inquiry reported in 1996 by Lord Lloyd assisted by Sir Michael Kerr38. The response to their report was the Terrorism Act 2000 (UK) which came into force in February 2001.
However, in many countries, the events of 11 September, 2001 have triggered the passage of several enactments designed to put the authorities into a legal position to deal with terrorist events and, hopefully, to prevent them. In the United Kingdom, Parliament enacted the Anti-terrorism, Crime and Security Act 2001 (UK). Police powers were enlarged by the Criminal Justice and Police Act 2001 (UK) and later laws.
The proliferation of this legislation has led to fragmentation and specialisation in the criminal law. It has resulted in a derogation by the United Kingdom under Article 15 of the European Convention on Human Rights and the adoption of significantly intrusive surveillance measures. One commentator, who acknowledged fully the need for special and extra powers, concluded39:
"[T]he alternative to the war model is still an extensive security State, with increasing focus on surveillance and financial scrutiny and approaches indicative of risk management and prevention rather than prosecution. There is no final victory in the war against terrorism. Equally, in an asymmetric conflict, the terrorist cannot destroy western polities, but they may be able to provoke western polities to destroy their own spirits".
In Australia there have been parallel developments in the enactment of several anti-terrorism laws since 200140. In fact, seventeen items of legislation restricting civil freedoms have been proposed to the Federal Parliament. Most of them have been enacted41. In addition, State legislation has been passed to complement the national laws42. There seems to be a tendency in this area to give legislation stirring names in the hope of rendering exceptions to civil liberties more palatable and opposition more unpatriotic. In Australia, we have not gone so far as calling such legislation a Patriot Act (as has been done in the United States). But the media have noticed the Orwellian character of some of the titles, such as the New South Wales Freedom of Information (Terrorism and Criminal Intelligence) Act 2003 (NSW) designed to restrict access to information43. Most of the Australian legislation has been enacted without significant parliamentary opposition. This caused an editorialist in the Sydney Morning Herald to remark in April 200444:
"A government statement breezily suggests that the law 'protects the community' by restricting people from obtaining security-sensitive information under freedom of information laws. But long experience of the way State and federal governments have perverted the intent of FOI statutes suggests that agencies will seek to prevent anything they regard as inappropriate from seeing the light of day - regardless of whether it may be related to inappropriate behaviour or even budgetary over-runs. … No one doubts that there exists a deeply troubling threat to orderly society by some fanatical individuals and organisations. But who within the two major Australian political parties is raising his or her voice about the importance of balancing the perceived need for more Draconian measures with the equally important preservation of civil liberties? Law enforcement and intelligence agencies habitually want greater power and licence to manoeuvre with only the minimum of legal constraint and legislative oversight. Liberals of the small "l" variety seem silent within the Liberal Party, apparently bowed and unprepared to break with prevailing political orthodoxy that too much toughness is not enough. The Labor Left, the traditional campaigner against too much police power, is also strangely quiet".
In such an environment the last line of defence for human rights, fundamental freedoms and individual liberty is the judiciary45. In contemporary democracy, in the matter of anti-terrorist legislation, the usual protections and balances may not always be available in the legislative process or executive enforcement. Minor players in the global "war on terrorism" sometimes come under international pressures which they cannot resist for the adoption of counterpart laws. Necessarily, the courts have only a limited role. Their duty is to give effect to any laws that are constitutionally valid. They must do so according to the language of the legislation and in order to achieve its presumed purpose46. But courts are not without lawful and proper means, in some respects, to ensure against an excess of legislative or executive action.
In many countries courts can test legislative provisions against the standards of a national constitution and a Bill of Rights. Even in countries like Australia, that do not have entrenched constitutional protections, courts are not bereft of legal means to uphold human dignity and fundamental civil rights. In appropriate cases, they may apply settled principles of statutory interpretation that require that laws which deprive individuals of longstanding and basic rights must be clear and without ambiguity47. As well, there is an increasing realisation within the courts of the Commonwealth of Nations that municipal laws should ordinarily be construed so as to conform to the developing international law of human rights48.
In several countries, judicial action in recent and not so recent times suggests a willingness on the part of the courts to ensure the protection of fundamental freedoms, even in the age of anti-terrorist legislation. In the balance of this paper, I refer to some of these cases.
South Africa and the Tanzanian bombing: An early instance of the unwillingness of Commonwealth courts to bend basic principles in the face of accusations of terrorism is the decision of the Constitutional Court of South Africa in Mohamed v President of the Republic of South Africa49.
The case concerned Khalfan Mohamed who was wanted by the United States of America on a number of capital charges relating to the terrorist bombing of the United States Embassy in Dar es Salaam, Tanzania, in August 1998. The appellant had been indicted in the United States and a warrant for his arrest was issued by a federal District Court. He had entered South Africa unlawfully as an alien. He was detained by the South African authorities, acting in cooperation with American officials. In his interrogation he was not given rights provided by South African law. The South African authorities purported to give him a choice between deportation to Tanzania or the United States. He preferred the latter; but applied to the courts for an order that the government of the United States be required to undertake that the death penalty would not be sought, imposed or carried out on him. That order was refused at first instance and the appellant was deported. This notwithstanding, an application to the Constitutional Court was pursued on the footing that the appellant had been denied the protection of South African constitutional law under which it has been held that capital punishment is contrary to constitutional guarantees50.
The Constitutional Court held that deportation was unlawful in Mr Mohamed's case and that extradition was the applicable law. Such remedy was required, under South African law, to be carried out under conditions obliging an assurance that the death penalty would not be imposed following conviction. In this respect, the court below, and the government of South Africa had failed to uphold a commitment implicit in the Constitution of South Africa. It was held that there had been no waiver consenting to deportation or extradition. Because the appellant was, by the time of the orders, in the United States under trial before a federal court, it was outside the power of the Constitutional Court to afford him immediate protection. Nevertheless, the decision of the judge below was set aside. A declaration was made that the constitutional rights of the appellant in South Africa had been infringed. The court directed its chief officer as a matter of urgency to forward the text of its decision to the United States Federal Court51. Following the outcome of the trial in the United States, the appellant was convicted. However, but he was not condemned to death.
In July 2004 a somewhat similar application was before the same South African court. An aeroplane had departed South Africa for Zimbabwe en route to Equatorial Guinea. South African officials alerted their counterparts in Harare of certain suspicions. The result was that the plane was searched and a quantity of weapons found. The alleged mercenaries were brought before the courts of Zimbabwe. They resisted deportation to Equatorial Guinea on the basis that, if convicted, they would be subject to the death penalty for treason. They also complained about the standards of the Guinean courts.
Whilst this application was pending in Harare, the applicants also sought relief in the Constitutional Court of South Africa. They alleged that the South African officials had acted without regard to their rights under the South African Constitution. They also asserted that, in the exercise of its international relations (and in any representations made to Zimbabwe and Equatorial Guinea), the South African government was bound by the language of the Constitution to take into account the mandatory requirement of the Constitution obliging the State to defend, uphold and protect the constitutional rights of those within its protection.
The decision of the Constitutional Court in this recent case was reserved on 20 July 2004. In the course of argument, the court was reminded of the famous words of Justice Brandeis in Olmstead v United States52, cited earlier in Mohamed53:
"In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously … Government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by its example … If the government becomes a law-breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy".
These last words have a special resonance in South Africa as the Constitutional Court explained in Mohamed54:
"… [W]e saw in the past what happens when the State bends the law to its own ends and now, in the new era of constitutionality, we may be tempted to use questionable measures in the war against crime. The lesson becomes particularly important when dealing with those who aim to destroy the system of government through law by means of organised violence. The legitimacy of the constitutional order is undermined rather than reinforced when the State acts unlawfully".
These words were written in May 2001, before the events of 11 September of that year. But they remain true. And not only in South Africa.
USA and Guantanamo Bay: Probably the best known decision in this class is that of the Supreme Court of the United States in Rasul v Bush55. That decision was given in June 2004. The Supreme Court was divided 6:3. The opinion of the Court was written by Justice Stevens. Justice Scalia wrote the opinion of the dissenting members (Chief Justice Rehnquist, Justice Thomas and himself).
In the Court opinion, Justice Stevens cited the law adopted by the Congress authorising the President, after 11 September, 2001, to use "all necessary and appropriate force against those nations, organisations or persons he determines planned, authorised, committed or aided the terrorist attacks … or harbored such organisations or persons"56. In reliance upon this law, President George W Bush established a detention facility at the Naval Base at Guantanamo Bay on land leased by the United States from the Republic of Cuba. Two Australians (Mamdouh Habib and David Hicks), who were detained in the facility, together with others, filed petitions in federal courts in the United States for writs of habeas corpus. They sought release from custody, access to counsel, freedom from interrogation and other relief.
The United States District Court dismissed these petitions for want of jurisdiction. It relied on a decision of the United States Supreme Court of 195057. That decision had held that "[a]liens detained outside the sovereign territory of the United States [may not] invoke a petition for a writ of habeas corpus". The Supreme Court reversed the federal court decision, granted certiorari and remitted the matter to the federal courts where the cases are now proceeding. In effect, Justice Stevens followed what he had earlier written in the Padilla case58:
"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unrestrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber … for if this nation is to remain true to its ideals symbolised by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny".
The decision of the majority of the Supreme Court in Rasul is reflective of similar notions. It traces the restraint on Executive power to legal and constitutional "fundamentals". It does so through the history of the legal system which the United States shares with Commonwealth countries59:
"As Lord Mansfield wrote in 1759, even if a territory was 'no part of the realm', there was 'no doubt' as to the court's power to issue writs of habeas corpus if the territory was 'under the subjection of the Crown'"60.
Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown"61.
The rule of law was upheld by the American judges. Even in the face of Executive demands for exemption from court scrutiny, because of the suggested exigencies of alleged terrorism, the Supreme Court asserted the duty of judicial supervision. To say the least, the case is an extremely important one.
By rejecting the contention that the Executive was not answerable in the courts for the detention off-shore by United States officials of alleged terrorists, the Supreme Court of the United States gave effective answers to the fear that the facility at Guantanamo Bay had become a "legal black-hole". That fear had been expressed not only by civil libertarians, do-gooders and the usual suspects. It had been expressed by the most distinguished lawyers of our tradition including Lord Steyn62, Lord of Appeal in Ordinary and Lord Goldsmith QC, the British Attorney-General63. The latter remarked on the duty of lawyers to influence and guide the response of states and the international community in their responses to terrorism64:
"The stakes could not be higher - loss of life and loss of liberty. The UK government is committed to taking all necessary steps to protect its citizens. I am convinced that this can be done compatibly with upholding the fundamental rights of all, including those accused of committing terrorist acts".
British security decisions: The decision of the United States court in Rasul was only one of a number of cases dealing with aspects of the response to terrorism. Such cases are beginning to appear in many jurisdictions. The same determination to uphold the rule of law can be witnessed in Commonwealth countries.
On 18 March 2004, the English Court of Appeal delivered its decision in Secretary of State for the Home Department v M65. The judgment of the English Court was given by Lord Chief Justice Woolf. The case was an application by the Home Secretary for leave to appeal against a decision of the Special Immigration Appeals Commission. That body had been established by the United Kingdom Parliament in response to a decision of the European Court of Human Rights66. The latter had criticised the procedures that existed under the legislation then in force to respond to terrorism in Northern Ireland.
The Commission is a superior court of record. Its members are appointed by the Lord Chancellor. One must be a judge who holds, or has held, high judicial office. This provision was in place when the events of 11 September, 2001 occurred. Under the Anti-Terrorism, Crime and Security Act 2001 (UK), the Home-Secretary has the power to issue a certificate in respect of a person whose presence in the United Kingdom is deemed a "risk to national security" or who is suspected to be a "terrorist"67. The Home-Secretary (Mr David Blunkett) granted such a certificate in the case of M, a Libyan national present in the United Kingdom.
Early in March 2004, the Commission, presided over by Justice Collins, allowed M's appeal against the Home Secretary's certificate. The Home-Secretary challenged this interference in what he saw as the essential political and ministerial judgment in the Court of Appeal. He complained that the Commission had reversed a decision for which he was accountable in Parliament and to the electorate through the democratic process.
The Court of Appeal rejected the Home-Secretary's application. It affirmed the decision of the Commission. It described the role played by the "special advocate" under the arrangements established by the British Parliament for participation in the procedures of the Commission in such a case. The aim of this "special advocate" was to make the attainment of essential justice more achievable in a case where certain information cannot be disclosed to the accused because of the suggested interests of national security68:
"The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him. Unlike the appellant's own lawyers, the special advocate is under no duty to inform the appellant of secret information. That is why he can be provided with closed material and attend closed hearings. As this appeal illustrates, a special advocate can play an important role in protecting an appellant's interest before the [Commission]. He can seek information. He can ensure that evidence before [the Commission] is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant. He can make submissions to [the Commission] as to why the statutory requirements have not been complied with. In other words, he can look after the interests of the appellant, in so far as it is possible for this to be done, without informing the appellant of the case against him and without taking direct instructions from the appellant".
Ironically, the alleged terrorist, "M", had refused to cooperate with the "special advocate". Obviously, he thought that this was a typical British formality, designed to do no more than to give a veneer of protection where none would in fact be afforded. M indicated at the beginning of the proceedings before the Commission that he did not wish to take any part in them. However, he affirmed that he was not involved in, nor did he support, acts of terrorism. It was then left to the Commission's own procedures to scrutinise the decision of the Home-Secretary to contrary effect.
In the result, the Commission ruled against the Home-Secretary. The Court of Appeal, like the Commission, held part of its hearing in closed session. Only part of its reasons were given on the record. The Commission insisted that the suspicion of the Minister had to be a reasonable suspicion. It stated that the Minister had failed to demonstrate error on the part of the Commission. In his concluding remarks, Lord Chief Justice Woolf, for the Court of Appeal, said69:
"Having read the transcripts we are impressed by the openness and fairness with which the issues in closed session were dealt with … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which [the Commission] have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to under-value the SIAC appeal process. … While the need for society to protect itself against acts of terrorism today is self-evident, it remains of the greatest importance that, in a society which upholds the rule of law, if a person is detained as 'M' was detained, that individual should have access to an independent tribunal or court which can adjudicate upon the whether of whether the detention is lawful or not. If it is not lawful, then he has to be released".
Israel and the security fence: At about the same time as the decision of the United States Supreme Court was handed down, the Supreme Court of Israel, on 2 May 2004, delivered its decision in a challenge brought on behalf of Palestinian complainants concerning the "separation fence" or "security fence" being constructed through Palestinian land70. This "fence" has been justified by the Government of Israel and the Israeli Defence Force as essential to repel the terrorist (specifically suicide) attacks against Israeli civilians and military personnel carried out from adjoining Palestinian lands.
In defence of the security wall, the Israeli authorities pointed to the substantial fall in the number of such attacks after the creation of the barrier. It would not have been entirely surprising if the Supreme Court of Israel had refused to become involved in any way in such a case, ruled the matter not justiciable in a court of law or had said that it had no legal authority to deal with such a matter lying at the heart of the responsibilities of the Executive for the defence of the nation.
However, the Jewish people themselves learned from bitter experience the great dangers of legal black-holes. In the Germany of the Nazis, the problem was not a lack of law. Most of the actions of the Nazi State in Germany were carried out under detailed laws made by established law-makers71. The problems for the Jewish people and other victims of the Third Reich arose from the pockets of official activity that fell outside the legal regime. These, truly, were "black-holes". It is evident that the Supreme Court of Israel was determined to avoid such an absence of judicial supervision. The Court did not challenge the basic decision of the Executive to build the wall. But, applying what common law judges would regard as principles of administrative law or of constitutional proportionality, it upheld the complaints of the excessive way in which the wall had been created in several areas. At the conclusion of his reasons, Justice Aharon Barak, President of the Court, said72:
"Our task is difficult. We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently hit by ruthless terror. We are aware of the killing and destruction wrought by the terror against the state and its citizens. As any other Israelis, we too recognize the need to defend the country and its citizens against the wounds inflicted by terror. We are aware that in the short term, this judgment will not make the state's struggle against those rising up against it easier. But we are judges. When we sit in judgment, we are subject to judgment. We act according to our best conscience and understanding. Regarding the state's struggle against the terror that rises up against it, we are convinced that at the end of the day, a struggle according to the law will strengthen her power and her spirit. There is no security without law. Satisfying the provisions of the law is an aspect of national security. In The Public Committee against Torture in Israel v The Government of Israel, at 845 [I said]:
'We are aware that this decision does not make it easier to deal with that reality. This is the destiny of a democracy - she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties.'
That goes for this case as well. Only a separation fence built on a base of law will grant security to the state and its citizens. Only a separation route based on the path of law, will lead the state to the security so yearned for."
The Israeli Supreme Court accepted petitions in a number of cases holding that the injury to the petitioners was disproportionate. It ordered relief and costs in favour of those petitioners.
Indonesia and the Bali bombing: On 24 July 2004, the world awakened to the painful news that the Constitutional Court of Indonesia had set aside the conviction imposed on one of the defendants, Masykur Abdul Kadir, convicted and sentenced to fifteen years imprisonment for helping Imam Samudra in connection with the bombing in Bali on 13 October 2002. The bombing killed 202 people, including 88 Australians.
The decision of the Indonesian Court was by majority, five Justices to four. The constitutional problem arose out of the decision of the prosecutor to proceed against the accused not on conventional charges of homicide or the crimes equivalent to arson, conspiracy, use of explosives etc. Instead, the accused were charged only under a special terrorism law introduced as a regulation six days after the bombings in Bali73.
The amended Indonesian Constitution contains basic principles protecting human rights and fundamental freedoms. One of these principles, reflected in many statements of human rights, is the prohibition on criminal legislation having retroactive effect74. An exception is sometimes allowed to permit trial or punishment "for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised countries"75. This expression is drawn directly from the statute of the International Court of Justice76. However, the decision of the Indonesian court was not wholly unexpected amongst lawyers who had been following the Bali trials. During the Bali hearings, the problem was canvassed in the Australian media77 by experts in Indonesian law. If the Indonesian Constitution explicitly forbids criminal punishment based on laws of retrospective operation, the decision is not legally surprising, subject to any exceptions that may apply.
There would have been many reasons of an emotional and psychological kind for the Indonesian judges to resist the accused Bali bombers' appeal to the prohibition against retrospective punishment. The evidence against the accused, demonstrating their involvement in the bombings was substantial and often uncontested. The behaviour of some of the accused in the presence of grieving relatives was provocative and unrepentant. The pain to the families of victims was intense. The damage to the economy of Bali and Indonesia, caused by the bombings, was large. The affront to the reputation of Indonesia was acute. In this sense, the case was a severe test for judges of the Constitutional Court sworn to uphold the rule of law.
The rule of law is itself one of the fundamental principles which democrats, the world over, defend against terrorists78. As Chief Justice Latham once said in an Australian case79, it is easy for judges of constitutional courts to accord basic rights to popular majorities. The real test comes when they are asked to accord the same rights to unpopular minorities and individuals. The Indonesian case of Masykur Abdul Kadir was such a test. Other proceedings may now be brought against him. Other convicted accused, who have exhausted the appellate right, may have no further remedies. Time will tell. But in the long run, the fundamental struggle against terrorism is strengthened, not weakened, by court decisions that insist upon strict adherence to the rule of law. This extends to accused who are innocent, or who may be. But it also extends to accused who may be guilty. It is in Indonesia's interests, and that of its neighbours and the Asia/Pacific region, that Indonesia's courts should enjoy (even in such a case) a reputation for strict adherence to constitutionalism, the rule of law and the protection of human rights and fundamental freedoms. This prolongs the pain of many. But the alternative course is more painful for even more.
In a comment on the Indonesian court's decision, an Australian editorialist said80:
"The Constitutional Court's decision should be seen for what it is - part of a proper legal process in which every person has the right to exhaust all avenues on appeal. This is a positive development for Indonesia. The ensuing legal uncertainty and the inevitable stress it will cause … could and should have been avoided".
TRUE DEMOCRACY & REAL ACCOUNTABILITY Judges of the Commonwealth of Nations and of other countries can take reassurance from the pattern in the judicial decisions that I have mentioned. Of course, I make no comment on their correctness. That is a matter for the courts concerned. All of them are decisions of high judicial personages. However, it is essential that strong decisions should be made at every level of the judicial hierarchy of every country: upholding the rule of law even in the contemporary modern age of terrorism.
The assertion of judicial superintendence of the Executive is vital for the good health of liberty in every society. This is the way it must be if we are not to lose our liberties in the struggle against terrorism and its challenge to those same liberties. The rule of the law and constitutionalism must be preserved. Moreover, anti-terrorist legislation itself must include protections such as those that were seen to work in the English courts in the case of M. For this, free citizens have a right to look to their Parliaments for proportionality and protection of the rule of law, not just rhetoric and a bidding war in extreme measures. Unrestrained, unscrutinised executive power is the path of tyranny. This is the lesson of the history of the common law. We do well to remember it. Judges must uphold that lesson in their judicial deliberations and in their orders.
In the Asia/Pacific Asian region, and elsewhere, there remain autocrats and nations that do not live by the rule of law or respect human rights and fundamental freedoms. In one of the leading newspapers in Thailand, an editorial commented on the "flurry of court-room activity demonstrating that war has its legal limits, and the rule of law still prevails"81. Noting the successive decisions of the Supreme Court of the United States and the Supreme Court of Israel and the appearance in the dock in Baghdad of Sadam Hussein to hear charges of war crimes and genocide under conditions that he never granted to his enemies (a public trial and defence by a lawyer of his choice) the editorialist observed:
"The rule of law is alive and well. … There are those who say democracy is the free election of a government, but that is barely the beginning. The true test of democracy is the accountability of those privileged enough to serve the voters. Almost every nation holds elections. Those that are truly democratic hold the elected officials responsible for carrying out legal policy. In a world where democracy has expanded rapidly in the past decade, this is not a minor detail. Democracy is a legitimate developmental weapon that can stop and help to defeat terrorism. … Like Mr Bush and Mr Sharon, the former dictator also will have to face a court of law and account for his actions".