Human Rights and Anti-Terrorism Legislation - Essay Example

TERRORISM LEGISLATION AND HUMAN RIGHTS The changes ushered into the British legal system ride on the crescent wave of voices and policies in the European community that seek to uphold the primacy of human rights and due process, particularly when made vulnerable by antiquated state structures and legal institutions. The clear trend has been to favor the sanctity of individual liberties over the preservation of traditionalist and vanguardist policies. As stated by O'Donnell (2004): "a truly democratic rule of law ensures political rights, civil liberties, and mechanisms of accountability which in turn affirms the political equality of all citizens and constrain political abuses of state power." (p.32) This paper will address the question of whether or not the notion of human rights is still applicable in the United Kingdom, given the recently passed anti-terrorism legislation. The primary Human Rights document in the United Kingdom is the Human Rights Act 1998. The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights and to provide for stricter human rights guarantees to be followed by all states. The provisions on free speech, freedom of assembly and due process all impact heavily on the criminal justice system in the United Kingdom. On the other hand, the Anti-Terrorism Act of 2001 was passed by the Parliament of the United Kingdom in November of 2001, a mere two months after the historic 9-11 attacks on the World Trade Center in New York City. Criticized by many for the undue haste in its passage, with concerns of political pressure being raised, the law in its original form contained passages that human rights groups deemed to be violative of established human rights principles. Amidst the outrage surrounding the 911 attacks, the Anti-Terror Law was heralded as a measure to combat the worldwide phenomenon of terrorism and to arrest its spread and development. Legal scholars and free speech advocates, however, unite in condemning the law for trampling constitutionally-protected liberties. There is also the possibility that the law might give rise to or at least encourage racial profiling, particularly the provisions on proscription of terrorist organizations. It might further alienate minority groups and exacerbate the political violence by radicalizing "moderate" groups. Human rights advocates scored a victory when the Law Lords ruled that a provision in the Law allowing the indefinite detention of foreign terrorist suspects was contrary to human rights principles. Lord Nicholls of Birkenhead, in his ruling, said: "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law." This decision was reached when nine detainees lodged their appeal before the Court. Indeed, due process is a fundamental principle of human rights. Criminal justice in any mature society always involves a balance of two competing interests: the need to protect the rights of the accused, and the need to combat crime and instill peace and order in society. "Legally, a crime is any act or omission proscribed by the criminal law and thus punishable by the state through the criminal justice system" (Davies, Croall and Tyrer, 2005) Legal systems in the civilized world - whether in civil or common law jurisdictions -- have, at least in theory, given primacy to the rights of the accused, understanding that ambiguity should be resolved in his or her favor. The anti-terror legislation of the United Kingdom unfortunately appears to have forgotten this notion. This comes as little surprise, certainly, given its beginnings that would make many a human rights advocate flinch. Post-911 anti-terror legislation in the UK is heavily laden with the baggage of American anti-war rhetoric which in turn smacks of prejudice, bigotry and an abject refusal to honor human rights principles. Widespread outrage took place, for instance, when it was found out that Iraqi detainees were being tortured and subjected to inhuman punishment in Abu Ghraib. . This is truly reprehensible because the concept of human rights is by no means of recent vintage. It is used primarily to define relationships between the citizens and the State, by constituting a check on the awesome power of the State and by enabling human beings to flourish to their fullest potential free from oppression, strife, hunger and discrimination. A thriving and robust democracy, it is often said, can only be achieved when basic human rights are preserved. The universal condemnation of state-sponsored repression is due in large part the globalized ideal of human rights, where we see a whittling down of the concept of sovereignty in favor of the acceptance of international norms of human rights. As stated by Douzinas, (2002) "the New Times, after the collapse of Communism has elevated human rights as a central principle." One concrete violation of human rights involves the shifting of the burden of proof. Fundamental and crucial indeed is the basic precept in criminal law that the burden of proving the guilt of the defendant resides on the prosecution. The statement of Viscount Sankey LC in Woolmington v DPP [1935] AC 462, 461 rings loud and clear: 'Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to ...the defence of insanity and subject also to any statutory exception'. The International Covenant on Civil, Cultural and Political Rights (ICCPR) contains iron-clad guarantees to protect the rights of the accused facing trial for a crime. Articles 9, 14 and 15 spell out these rights in great detail - from the presumption of innocence to the right against self-incrimination to the right against double jeopardy and to the famous Miranda doctrine. Closer to home, under Article 6(2) of the European Convention on Human Rights, an accused enjoys a presumption of innocence. (Keane, 2006). At a time when human rights advocacy for the accused has been made unpopular by the rising rate of crime and thus, there is a greater risk of possible infringement of constitutional guarantees by overzealous constables, vigilance is imperative. The importance of the presumption of innocence is discussed in the case of State v Coetzee [1997] 2 LRC 593, where it was stated: '...the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system'. A specific example of this is the Criminal Justice and Public Order Act of 1994, which in effect, amends The Prevention of Terrorism Act 1989. The CJA 1994 was enacted amidst widespread furor from civil liberties groups for punishing behavior deemed "anti-social". The wider restrictions on raves (or the use of repetitive beats), the regulations on street protests and the wider definition of trespass have been perceived to be in violation of human rights guarantees. More relevant to this paper is that it imposes, in Section 82, an "evidential burden" on the defendant. (Cooper, 1996) It states that: xxx. A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies. xxx. It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above. Owing to the grave threat posed by terrorism, which is a borderless crime, and has resulted in the deaths of thousands of civilians the world over, the Legislature has deemed it prudent to enact special safeguards to address this menace. In effect, Parliament appears to be saying that the exigencies of public order trumps ordinary rules of evidence, and that drastic problems require similarly drastic solutions. This mindset, however, has alarmed civil libertarians. Indeed, it is ironic considering the strong bias towards civil liberties in European Courts. In fact, aside from imposing a negative obligation on law enforcement agents not to trample on protected rights, the law states that they must secure the effective enjoyment of these rights. [Wilson and Palmer v. United Kingdom (2002) 35 EHRR 20). Conclusion Though revisions in the law can always be made, what really must be changed is the political landscape and social perceptions. It has been said that any new legislation must always be viewed against the backdrop of its contextual realities. For example, when the Constitutional Reform Act 2005 was being drafted, on deliberations pertaining to the issue of judicial independence, illuminating are the questions posed by the Select Committee on the Constitution, 5th Report of Session 2005-2006: "Does it have any application to ministers who publicly ask for judges to be tough on suspected terrorists, or who threaten the courts with the prospect of amending legislation if they do not give effect to current Certainly, a modernization of the system is long overdue. In order to keep up with the times and to keep a society that is protected from crime while at the same time maintaining its adherence to human rights and civil liberties, the system needs to be revisited from time to time. Antiquated concepts must be thrown out. Conceptions in criminal justice is constantly evolving, the variety and nature of crimes committed shift as well. The key is to be able to adapt with constantly rising developments, while remaining firmly committed to the timeless ideals of justice. References Cooper, S. (2003). "Human Rights and Legal Burdens of Proof."Web Journal of Current Legal Issues. Available at: http://webjcli.ncl.ac.uk/2003/issue3/cooper3.html Last Accessed: March 28, 2007. Davies, M., Croall, H. & Tyrer, J. An Introduction to the Criminal Justice System in England and Wales. London: Pearson Longman. 2005. Douzinas, C. (2002) The End(s) of Human Rights. Melbourne University Law Review. Vol. 23. p. 43. Hoffman, D. & Rowe, J. Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman. 2003. Hudson, B. "Beyond proportionate punishment: Difficult cases and the 1991 Criminal Justice Act." Crime Law and Social Change. Vol. 22, No. 1, 1994. Keane, A. The Modern Law of Evidence. London: LexisNexis. 2005. Matthews, R. "Crime and Its Consequences in England and Wales". Annals of the American Academy of Political and Social Science. 1995. Murphy, P. Murphy on Evidence. 9th Edition. Oxford: Oxford University Press. 2005. O'Donnell, G. (2004) Why the Rule of Law Matters. Journal of Democracy, Volume 15(4). Windlesham, L. Responses to Crime: Vol. 3--Legislating with the Tide. Oxford: Oxford University press. 1996. Cases: State v Coetzee [1997] 2 LRC 593 Wilson and Palmer v. United Kingdom (2002) 35 EHRR 20) Woolmington v DPP [1935] AC 462, 461 Read More