January 9, 2003
Fear Of Torture Doesn’t Let UK Deport Suspects : AG
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Fears that terror suspects might face ”death, torture or inhuman and degrading treatment” in their country of origin ”prevents us sending them back,” Britain’s chief legal advisor says.
”We have of course had to confront these issues in the United Kingdom,” Attorney-General of England and Wales Peter Goldsmith said, lecturing at the Indian Society of International Law in the Capital last night.
Mr Goldsmith, who delivered the 2003 M K Nambyar Lecture, also touched on Britain’s failure to deport a Pakistani cleric who raised money and recruits for a Kashmiri terrorist group accused of attacking the Indian Parliament in New Delhi last year.
He said the terrorist threat ”is now on an unprecedented global scale, as the dreadful events that have taken place over the last 16 months only too graphically testify: from New York-Washington and Bali to Moscow, Mombasa and here in India.”
The lecture titled ‘Right or Rights: Does tackling terrorism force us to choose?’ dwelt on steps States should take to protect themselves from the activities of terrorists and the Courts’ role in relations to State action.
”One of the more controversial steps,” the British AG said, ”relates to the treatment of persons within the country who have no immigration right to remain and who are suspected of involvement in terrorism and pose a threat to national security.
”In relation to these persons we have a difficulty,” he said. ”Under our immigration laws we have the right to deport them because they have no right to be in the country.
”But we are prevented from carrying out the deportation because of certain international obligations, notably under the European Convention of Human Rights, which is now a part of our domestic law.
”Where the individuals would face death, torture or inhuman and degrading treatment if returned to their country of origin, those obligations (under Article 3) prevent us sending them back.
”So we are faced with a choice: either to leave them to roam free in the country–which is an unacceptable risk given the heightened threats since 11 September– or to detain them unless and until they voluntarily leave the country.
”Under these new powers, 13 people have so far been detained and two, having been detained, have voluntarily left the country,” he told the audience.
Mr Goldsmith spoke of the ”inherent, but now heightened, tension within the Constitution” between the judicial branch and democratic powers– Parliament and the executive– which, he said, was to be resolved by the ”emerging principle of judicial deference.”
Mr Goldsmith cited the case of Shafiq ur Rehman, a Pakistani cleric who was ordered to be deported from Britain four years ago as a ”danger to national security” but was told a few months back that deportation proceedings against him have been dropped.
”In this case,” Mr Goldsmith recalled, the British Home Secretary had decided that the appellant’s deportation would be ”conducive to the public good” based on conclusions as to his involvement with a terrorist organisation ”operating in the Indian sub-continent (which was seeking ‘the liberation of Kashmir’).”
But the appellant ”successfully appealed” to the Special Immigration Appeals Commission, which could not understand ”how conduct prejudicial to the national security of the Indian sub-continent could be prejudicial” to UK’s national security, he said.
”In the House of Lords, however which granted the Home Secretary’s appeal, Lord Hoffmann took the view that SIAC was not entitled to differ from the opinion of the Home Secretary on the question of whether, for example, the promotion of terrorism in a foreign country by a UK resident would be contrary to the interests of the UK’s own national security. In the carrying out of such assessments, the Courts should extend the appropriate degree of deference to the executive.
”That was not to say, of course, that the whole decision on whether deportation would be in the interests of national security was surrendered by the Court to the Home Secretary.
”For example, the question whether deporting someone would expose him to the risk of ill-treatment contrary to Article 3 of the Convention would be a matter which would certainly not lie within the exclusive province of the executive.
”This is an indication that the Courts are prepared to distinguish between those elements of a decision which attract deference and those which do not.
”The key question, is how well-placed or well-equipped the Courts are– having regard to the particular subject-matter of the decision and the particular areas in which the Courts have accepted expertise– to determine the particular issue,” he said.
India’s Chief Justice V N Khare presided over the lecture, which was organised jointly by the Bangalore-based National Law School of India University and the M K Nambyar Memorial Trust founded by Senior Advocate K K Venugopal to commemorate his father, one of India’s leading constitutional lawyers.
Describing the global nature and magnitude of the threat of terrorism, Mr Goldsmith said, the increased world travel, internet and global telecommunications which benefit millions ”have brought new challenges too, especially in the area of crime.”
Criminals conduct their business across international boundaries, Mr Goldsmith said. ”They traffic young women from the Ukraine or Romania to Bosnia and through the European Union to the UK; they smuggle drugs from the cocaine factories of Colombia to the streets of Paris or Rome; or launder money through bank accounts in all the financial cities of the world. Through international travel and cyberspace they operate globally. The scale of the problems is huge.”
He said drugs were a huge international business– UK market alone estimated at seven billion pounds– accounted for 2000 drugs-related deaths a year and much other crime: property crime, drug dealing, fraud and prostitution.
In one city, he said, it was reported that 70 per cent of all recorded crime was committed by drug users. He cited UN estimate that illegal immigration business is worth 15 to 30 billion dollars a year.
Estimates put the value of money laundering transactions– a key part of much organised crime– at two to five per cent of global GDP– around 1.5 trillion dollars. ”So crime now presents a global threat.
”But our national law enforcement is based firmly on a national level. Law enforcement agencies have to operate within their own national systems and national laws.
”A drug trafficker may have contacts and collaborators in any number of countries. Even to obtain the evidence of people in each of those countries may present a major logistical problem for prosecutors.
”Our courts cannot directly order the attendance of a witness from another country to attend before it; without the assistance of foreign authorities it cannot compel the production by a foreign bank of its records of transactions in another country; nor give us the ability to order the police force of another nation to investigate a particular potential witness in that country.
”And of course our national jurisdiction will usually be limited to crimes committed in our own countries so that we cannot bring to justice those whose activities may have affected us but whose conduct has been abroad.
”In short, we must respect national boundaries and frontiers whilst the criminals treat them with contempt. It is through international cooperation that we can hope to find an answer to this challenge,” the AG said.
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- Many Freed Criminals Avoid Deportation, Strike Again (amren.com)
- India ignores abuses in Kashmir, says report (dawn.com)
- U.S. geophysicist says he was deported as he was on a blacklist (thehindu.com)