Friday, December 17, 2004

The rule of law triumphs in Britain

The response of democratic governments to the terrorist attacks of September 11th, 2001 has been to tighten immigration regulations and to pass legislation typically allowing for indefinite detention without trial of suspected terrorists, turning the "war on terror" into a war on human rights. But in Britian, at least, some form of sanity seems to be returning. In a case which directly parallels that of Ahmed Zaoui, the UK's highest court has ruled that indefinite detention without trial violates Britain's human rights obligations under the ECHR, ICCPR, and other international agreements. While the decision is made on the basis of discrimination - that indefinitely imprisoning foreign nationals who cannot be deported for fear of torture but not British citizens is blatantly discriminatory, it is clear that the Law Lords disagree witht he whole idea of arbitrary detention. Lord Nicholls of Birkenhead begins his judgement with the statement that

Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law

And to add further fuel to the fire in our own local dispute over the role of the Supreme Court, there are frequent side comments on the balance between courts and Parliament in Britain. Lord Nicholls again:

Parliament has charged the courts with a particular responsibility ... to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected.

In fulfilling that duty, the courts are abiding by the democratic will as expressed by the elected legislature - not undermining it.

And in a part directly applicible to the Zaoui case, Lord Nicholls thoroughly discredits the idea of the "three sided cell":

It is true that those detained may at any time walk away from their place of detention if they leave this country. Their prison it is said, has only three walls. But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill-treatment in any country willing to admit them.

It has always astonished me that politicians could claim that a "choice" between mere imprisonment and probable torture and death was any sort of choice at all, and it is good to see judges treating it with the disdain it deserves.

This decision represents a triumph for human rights and the rule of law in Britain. We can only hope that our own courts will see fit to follow suit.