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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 173
January 9, 2003

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CRIME & punishment

House of lords reveal the latent discrimination on grounds of nationality in UK

Redwan Hossain

The British government opted out of part of the European Convention on Human Rights concerning the right to a fair trial in order to bring in anti-terrorism legislation, Terrorism Act 2000 in response to the 11 September attacks in the US. Any foreign national suspected of links with terrorism can be detained or can opt to be deported. But those detained cannot be deported if this would mean persecution in their homeland.

In a blow to the government's anti-terror measures, the House of Lords ruled by an eight to one majority in favour of appeals by nine detainees ruling that the measure breaks human rights law. The detainees took their case to the House of Lords after the Court of Appeal backed the Home Office's powers to hold them without limit or charge.

The law lords said that the rules were incompatible with the European Convention on Human Rights as they allowed detentions "in a way that discriminates on the ground of nationality or immigration status" by justifying detention without trial for foreign suspects, but not Britons. "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. "It deprives the detained person of the protection a criminal trial is intended to afford."

The case was heard by a panel of nine law lords rather than the usual five because of the constitutional importance of the case.

The special immigration appeals commission SIAC ruled on 30 July, 2002 that the anti-terror act unjustifiably discriminated against foreign nationals as British people could not be held in the same way. But that ruling was later overturned by the Court of Appeal who said there was a state of emergency threatening the life of the nation.

Who are the terror detainees?
There is not a lot of information available about the men at the centre of the UK government's anti-terror detentions - but they do share some key characteristics.

All of them were foreign nationals, none of them were being held under criminal charge pending trial - and none of them could be deported because lawyers believed they would face persecution in their home countries. Of 544 people arrested under anti-terror legislation between September 2001 and January 2004, only 98 were charged and six convicted, committee chairman Jean Corston MP said.

However here are brief profiles of two of the six suspects involved in the legal battle against the detentions.

A is an Algerian man who came to the UK in July 1989. The Home Office deported him as an overstayer to Sweden. He returned, claimed asylum, but was rejected. He was detained under special powers in December 2001. The Home Secretary said this man actively supported GSPC, an Algerian group said to have terrorist intentions. Suspect A "broadly supported" the aims of Osama Bin Laden and al-Qaeda. He allegedly used credit card fraud to raise funds for the organisation he supported. The government also claims A was associated with a terrorism suspect who was later apprehended at Heathrow.

E is Tunisian and claimed asylum after coming to the UK. He waited six years for a decision, was rejected but then told he could stay until 2005. The home secretary detained E in December 2001, saying: "You are an active supporter of the Tunisian Fighting Group, a terrorist organisation with close links to al-Qaeda. You have provided direct assistance to a number of active terrorists." At his original case hearings, the authorities were challenged as to whether the group indeed existed. E also alleged that evidence against him was unreliable because it was obtained by torture of others abroad. The court however ruled in favour of the home secretary, although its full reasons remain secret.

At the moment, two out of the 6 appellants are held at Broadmoor secure hospital because they have become mentally ill due to the torture.

Fate of the detainees
The pressing question then is what happens to the detainees in Belmarsh?

One of the detainees has already been released and is subject to a form of house arrest. It is possible that a similar procedure could be followed with those considered too dangerous to free unconditionally.

But that, too, is bound to provoke a legal challenge. There may be renewed efforts to find countries, which might take those suspects who refuse to return to their homelands for fear of torture or death.

But that may be a forlorn hope. For the UK government, it is a major headache, which must be addressed urgently.

Ministers have been braced for this defeat since hearings were held before the lords in October. Even, Attorney General Lord Goldsmith, who presented the government's case, was privately gloomy about the prospects of success, knowing that a law that discriminates against foreign-born detainees strikes at the heart of ancient legal safeguards against arbitrary arrest.

So, what now? In the United States, a ruling of similar magnitude by the Supreme Court meant automatically that Guantanamo captives could challenge their detention in the courts.

But the House of Lords does not have primacy over the executive and the government must now decide if it wishes to take its case to parliament for a second time.The alternative is to frame new legislation, which would put foreign-born suspects on exactly the same footing as British citizens and allow them to be tried on terror charges.

How to fight terrorism in a democracy under the rule of law?
The UK had to grapple with that problem during 40 years of IRA terrorism and is now having to confront it again in the face of the threat from Islamic fundamentalists.
The Anti-Terrorism, Crime and Security Act give the home secretary the power to detain foreign nationals who are thought to be a potential danger to the UK, but who cannot be deported because they face persecution in their own countries and no other country will take them.

They are held because the intelligence services, MI5 and MI6, have information about them, which gives rise to suspicion that they are linked to international terrorism.

But in the case of the 12 individuals still being detained under this Act, there is either not enough evidence to charge them or the information about them comes from sources, which the government does want to be exposed in court.

So what to do with them?
The answer from the Home Office has been an extraordinary legal forum called the Special Immigration Appeals Commission.

Three High Court judges decided that the home secretary is right to order the detention of these individuals. It is extraordinary because the men do not know what information is held about them. Nor are their lawyers allowed to know.

The information is given to a trusted special advocate who represents each man. Most of the hearings are in private with the decision taken by the three judges.

They could, of course, walk out of prison tomorrow but would have to agree to be deported to a country prepared to take them.

Instead, they have decided to fight the whole process and the decision to free one of the suspects has been a significant setback for the Home Office.

The key point was the indefinite nature of the detention and is similar to the criticism of the regime imposed by the Americans on detainees in Guantanamo Bay

Ex-Home Secretary David Blunkett planned to amend the law so that he can appeal to a higher court against SIAC decisions over bail but he has been fiercely attacked by lawyers and human rights groups for abandoning the very legal safeguards which distinguish democracy from totalitarian intolerance.

Concluding Remarks
The emergency powers were introduced in 2001 after the 11 September attacks.

Thirteen foreign terror suspects are currently being held without trial at London's Belmarsh jail. The government had to "derogate" (opt-out) of the European Convention on Human Rights in order to pass the emergency detention measures. But to continue to do so in the long-term risks "corroding the culture of respect for human rights," the committee warns.

It proposes tougher rules covering both foreign and domestic terror suspects, as an alternative to indefinite detention.

These include:
- The use of phone taps as evidence in court
- Intensive surveillance of terror suspects after release
- The introduction of security-cleared prosecutors who would be able to view material from intelligence sources
- New "civil restriction orders" - such as curfews or tagging - to limit the activities of people thought to be linked to terrorism, but not themselves considered serious suspects.

Lib Dem peer Lord Lester, who is a member of the committee, said: "We are saying that indefinite detention without trial is, in Winston Churchill's famous phrase, in the 'utmost degree odious' and that alternative means need to be found." The report also warns of the "disproportionate impact of the use of the Terrorism Act powers on the Muslim community". And it warns against the use of evidence in trials obtained by torture in other countries.

The new law would apply to "everybody irrespective of nationality," Blunkett said.

A spokesman for civil rights group Liberty said, "The Americans have begun to realise that they cannot hold the Guantanamo detainees indefinitely. "Surely the British Government can also realise that they must release the detainees they hold, or put them on trial?"

In effect the 'terror detention law' must go.

The author is studying Law at Kings College, London, UK.


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