Democracy and Terrorism - Assignment Example

Democracy and terrorism * A democracy is based upon the premise spelt out by Locke, who was of the view that sovereignty rests in the hands of the people and that the law is intended to ensure the peace and preservation of all mankind, so that one man is obliged to do no harm to another.1 * In a democracy, when people enter into a society with other people, they are protected by common laws. Rousseau believed that man was a “natural savage” and that freedom was vital to his development, with laws being framed through a common self interest by consensual approach2 which is the characteristic of a democracy, with freedom for all. * Hobbes however, states that man’s natural state, prior to the formulation of a Government and laws, is violent and brutish – man has the right to do anything including killing and violence. Therefore, when a social contract is entered into, all rights must be surrendered to a Sovereign, irrespective of whether or not man is happy with that state of affairs, because any Government is better than no Government2a. Thus Hobbes advocates a dictatorial form of rule and curbing of individual rights to maintain the peace. * The utilitarian position on democracy and freedom is based upon the proposition that the value of individual freedom is generally associated with that of greater good for society as a whole.3 According to Feldman, “once something has been identified as a good, it must prima facie be made available to all without differentiating with reference to preferred outcomes.4 * However, in order that a democracy functions at its optimum, individuals cannot be permitted unlimited freedom. According to Feldman, individual rights must be balanced against social goals5 and he views human rights as being linked to the conditions necessary for a democracy; human rights “help to establish the conditions of free speech, tolerance, equality and mutual respect for people’s dignity…”6 * Liberalism is the premise upon which the legal system underlying modern democracy exists. McLaughlin has examined the merits of this approach proposed by Rawls, which states that where a society that has differing views about what constitutes the “good”, a system of law exists in which certain areas rest behind a veil of ignorance, where gender, age, beliefs or systems will not apply7. This neutral area is derived through (a) identifying the rights necessary for the most basic level of liberty that is compatible with that required for others (b) social and economic equalities arranged in such a manner that they may benefit everyone and be open to all. * Liberalism which forms much of the foundation of law and legal theory affords flexibility to individuals which is one of its good points, however the basic argument that is offered by the feminist critique of existing notions of jurisprudence is the fact that the theories and the idea of what constitutes individuality are grounded in male experience which is falsely attributed to be the human experience8 * On the basis of liberalism which is the cornerstone of democracy therefore, a political system cannot be used to enforce one conception of good, but only to lay out a general, flexible framework within which individual differences are accommodated, thereby eschewing the need for violence. * Dworkin states that “according to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice.”8 But the application of the law to terrorism poses a problem in the fact that it involves violence, which in itself opposes the principle of order underlying law in a democracy. * The transnational nature of terrorism has been pointed out by Sandler, Tschirhart and Cauley who define terrorism as “the premeditated, threatened or actual use of force or violence to attain a political goal through fear, coercion, or intimidation"9. Sterne has pointed out how the essence of terrorism is the use of, or threat of use of, violence against non combatants.10 * Therefore, in applying the law to terrorism in a democracy, a peculiar dilemma is posed as pointed by Ignatieff, “…. defeating terror requires violence...how can democracies resort to these means without destroying the value for which they stand?"11 English law especially, demonstrates an established position at common law against violence and torture.”12 * Torture was regarded as "totally repugnant to the fundamental principles of English law" and "repugnant to reason, justice, and humanity"13 and if accepted within a legal context, likely to undermine the purpose of justice. * In the case of A and Others v Secretary of State for the Home department14, the question of admissibility of evidence secured by torture was raised and Lord Bingham pointed out the inadmissibility of confessions obtained under pressure as evidence, which has become an established principle in English common law, as also laid out in the cases of Ibrahim v The King15 R v Harz and Power16 and Lam Chi-ming v The Queen.17. Lord Bingham also pointed out that international law also mandates that “any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made.”18 * Thus, torture is torture wherever it is carried out and whoever does it, therefore it cannot be acceptable in judicial proceedings.19 * Applying this principle, this raises the issue of how then is terrorism to be combated within a democracy? Terrorists do not hesitate to use violence as a means to serve their ends, however with all the safeguards provided to accused persons under the law, it becomes difficult to convict them and ensure that they are punished for their crimes. * For example, Section 6 of the Human Rights Act of 199820 mandates that all public bodies including judicial authorities interpret the law and act in a manner that will be compatible with the goals of the European Convention of Human Rights. Section 5 of the ECHR provides the right to liberty and security, Section 6 of the European Convention guarantees the right to a free trial while Section 3 specifically guarantees every individual the right to not be subjected to cruel or degrading treatment.21 * Thus in A and Others v Secretary of State for the Home Department Lord Bingham clarified the role of the Courts to pre-empt torture22 and sanctioning its use in national law would contravene the jus cogens on use of torture in international law, which is universal in jurisdiction23. * Statutory schemes under Article 4 of the Anti Terrorism Crime and Security Act of 2001 in the UK does not specifically preclude the use of evidence obtained by torture, perhaps viewing it as the only way to obtain the necessary legal means to convict terrorists within the legal framework of a democracy. However established precedents in common law work are against torture because it is not an act that can be sanctioned within a democracy. * In the United States for example, the protection against self incrimination afforded by the Fifth Amendment to the U.S. Constitution has been the cause of frustration for the FBI, since it is unable to get witnesses to talk and to provide material evidence for the conviction of terrorists. Professor Alan Dershowitz advocates that judges be authorized to issue a “torture warrant” in cases where terrorists have to be forced to give evidence; his argument is that a democracy requires accountability, transparency and compliance with the law, therefore torture must operate within the law to secure the conviction of terrorists. 24 * However, this view would rise in contravention to the principles of civil liberty upon which a democracy is founded, since authorizing torture under the umbrella of the law would mean that effective control cannot be maintained over its use by law enforcement officials and the preservation of the fundamental rights of individuals, which is at the core of a democracy, will be violated. * In the UK, the recent Protection of Terrorism Act of 2005 gives the Home Secretary powers to impose control orders on those suspected of terrorist activity, thereby practically dispensing with the need for a trial. * However, as Lord Steyn has pointed out, such provisions granted under the new Act will definitely rise in contravention of Article 10 of the European Convention of Human Rights, which also provides the right to freedom of expression.25 * The values contained within the framework of democracy are based upon the rights of individuals and freedom to enjoy certain rights and liberties under the law. While terrorism is undoubtedly a lethal threat and terrorists are the cause of violence and damages, the use of torture cannot be condoned within a democracy. The use of violence to combat violence only puts the State on par with the terrorists themselves and undermines the very foundation of order upon which the legal system is founded. As Lord Bingham has correctly pointed out, the use of torture has been repugnant under common law, in fact any measure that restricts or violates the rights accorded to individuals within a democracy must be viewed with suspicion. Combating terrorism is not an easy task, however adopting the suggestions of people such as Professor Dershowitz is likely to interfere with the natural course of justice. Individuals subjected to torture are likely to say anything to escape the torture and the possibility of wrongful convictions on the basis of evidence obtained under torture is a distinct possibility. Any measures to combat terrorism cannot be achieved by undermining the basic structure of the law and the fundamental rights and freedoms, which are the guiding principles enshrined in the ECHR and HRA, both of which are mandated in a democracy. Terrorism must be combated through lawful means within a democracy. Bibliography Articles/Websites: * http://news.bbc.co.uk/1/hi/programm...ama/4325208.stm * Dershowitz, Alan, M, 2001. Is there a torturous road to justice? Commentary. [online] available at: http://www.latimes.com/news/opinion/la-000089139nov08.story?coll=la%2Dheadlines%2Doped% 2Dmanual * Feldman, David, 2004. The Impact of Human Rights on the UK legislative process Statute Law review 25(2), pp 91 * Ignatieff, Michael, 2004. Lesser Evils New York Times Magazine [online] available at: http://www.ksg.harvard.edu/news/opeds/2004/ignatieff_less_evils_nytm_050204.htm * Report by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human Rights, in November 2004 (8 June 2005, Comm DH (2005) 6) * Sandler, T, Tschirhart, J.T. & Cauley, J. 1983. Atheoretical Analysis of Transnational Terrorism. American Political Science Review, vol.77 * West, Robin, 1988 Jurisprudence and gender 55, University of Chicago Law Review 1 Cases: * A and Others v Secretary of State for the Home Department [2005] UKHL 71 * Ibrahim v The King [1914] AC 599, 609-610 * Lam Chi-ming v The Queen [1991] 2 AC 212, 220. * R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 197-199 * R v Harz and Power [1967] AC 760, 817 * Soering v United Kingdom (1989) 11 EHRR 439 Legislation: * Anti terrorism Crime and Security Act of 2001 * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * International Torture Convention * Protection of terrorism Act of 2005 Books: * D. Jardine, 1837. A Reading on the Use of Torture in the Criminal Law of England Previously to the Commonwealth, pp 6, 12 * Dworkin, Ronald, 1986. Law’s Empire London: Fontana * Feldman, David, 2000. Civil Liberties and Human Rights in England and Wales. 2nd edn. Oxford: Oxford University Press * Hobbes, Thomas, 1996. Leviathan Oxford: Oxford University Press * Locke, John. Two treatises of Government, 1690. Internet Modern History Sourcebook. [online] available at: http://www.fordham.edu/halsall/mod/1690locke-sel.html * McLaughlin, Janice, 2003. Feminist Social and Political Theory Sweet and Maxwell, pp 26-41 * Mill, J.S., 1962. On liberty In M Warnock (edn) Utilitarianism” London: Fontana. * Melzer, A.M, 1990. The Natural Goodness of Man: On the System of Rousseaus Thought, Chicago: University of Chicago Press. * Sterne, Jessica ( 2003 ) “Terror in the name of God: Why Religious Militants Kill” Ecco, Harper Collins Publishers * Sir William Blackstone (Commentaries on the Laws of England, (1769) vol IV, chap 25, pp 320-321 Read More