Daily News (Sri Lanka), March 23, 2007

PREVENTIVE CONFINEMENT AND THE SECURITY OF STATE

[Rachel's introduction: With President Bush invading Iraq and denying prisoners the right of habeas corpus -- all in the name of precautionary action -- advocates for the precautionary principle need to think deeply about the precautionary principle in relation to preventive war and preventive detention.]

By Dr. Ruwantissa Abeyratne

MISTAKE: As little ones in school, one of the stories that we revelled in was Alice in Wonderland by Lewis Carroll. In one instance, we find Alice being confused by an argument adduced by the queen in support of preventive confinement. The queen tells Alice that the king's messenger is in prison, being punished and the trial does not even begin until the following week.

The messenger is being incarcerated for a crime he was yet to commit. "Suppose he never commits the crime?" asks Alice. "That would be all the better, wouldn't it?" says the queen. Alice does not agree.

"Were you ever punished"? The queen asks Alice. "Only for faults" says Alice. "And you were all the better for it" the queen retorts. "Yes, but then I had done the things I was punished for" says Alice, "and that makes all the difference".

Dilemma The queen is triumphant: "but if you had not done them, that would have been even better still".

And Alice thinks to herself, "there is a mistake here somewhere". Mistake indeed. This puts all of us who live in the modern world in a dilemma between proactively pre-empting a calculating evildoer on the one hand, and honouring the most fundamental tenet of democracy which says that preventively confining someone is antithetical to the tenets of civil liberty and erodes the fundamental right of a person to liberty, on the other.

United States Supreme Court Justice Robert Jackson exhorted this principle years ago when he said that the jailing of persons by the courts because of anticipated but yet uncommitted crimes could not be reconciled with traditional American law and is fraught with danger of excess.

There have certainly been exceptions to this principle. One is called the "dangerous person approach" based on self defence.

Principle

A striking example of this is found in the closing argument of John Adams on behalf of the British soldiers accused to have carried out the Boston massacre, when he said that the first and strongest principle is to prevent our own deaths by killing those about to attack us.

However, to resort to an extreme measure such as preventive confinement, one has to have compelling and incontrovertible evidence of the guilt of a person beyond the shadow of a doubt.

Immanuel Kant, the eighteenth century German philosopher, in his book Metaphysical Elements of Justice, said that it is intolerable to impose punishment for a future crime, as judicial punishment must always be imposed for a crime that has already been committed.

There is no doubt that we live in interesting times, when we propound our own principles that are calculated to cocoon us from evil and terror. One such is the "precautionary principle" which the New York Times called one of the most important ideas of 2001.

The precautionary principle has its genesis in environmental protection and is founded on the theory that it is morally justifiable to take precaution against environmental damage.

This has now been extended to respond to threats to liberty and security. However, the question is, to what extent can we spread the precautionary principle over the canvass of the law?

We have created laws that justify our confining potential evildoers, on the basis that we are preventing acts against the security of the State by doing so.

In the United Kingdom, in the 1942 case of Liversidge v. Anderson, the House of Lords considered Defence Regulation 18B which allowed the Home Secretary to order a person detained if he has reasonable course to believe that such a person was of hostile origin or association. The majority decision in this case was to the effect that if the Home Secretary thinks he has good cause that was good enough.

The dissenting judgment of Lord Atkin, who was of the view that judges should not be more executive minded than the executive, was later upheld in the appellate stage of the 1951 Sri Lankan case Nakkuda Ali v. Jayaratne where the court held that such a power, to detain persons, must be exercised on objectively reasonable grounds.

In the United States, of corresponding analogy is the wartime experience where 120,000 Japanese persons were placed in detention camps during the second world war. In 1988, the United States Congress passed legislation to the effect that the prisoners had largely been detained under racial and other subjective motivation which were determinants of a weak political leadership.

There are instances where a State can be defended for invoking preventive detention based on the overarching principle of social contract by which the citizens charge the State with the responsibility of ensuring their security.

Social Contract describes a broad class of philosophical theories whose subject is the implied agreements by which people form nations and maintain social order.

Social contract theory provides the rationale behind the historically important notion that legitimate state authority must be derived from the consent of the governed which, in other words means that a democratic State is precluded from enacting draconian laws against the civil liberty of citizens unless with the consent of the people.

The first modern philosopher to articulate a detailed contract theory was Thomas Hobbes, who contended that people in a state of nature ceded their individual rights to create sovereignty retained by the state, in return for their protection and a more functional society, so social contract evolves out of pragmatic self-interest.

Hobbes named the state Leviathan, thus pointing to the artifice involved in the social contract.

Civil liberties

This brings one to the fact that, at the heart of the debate is the concept of civil liberty. Civil liberties is the name given to freedoms that protect the individual from government. Civil liberties set limits for government so that it can not abuse its power and interfere with the lives of its citizens.

Basic civil liberties include freedom of association, freedom of assembly, freedom of religion and freedom of speech.

There are also the rights to due process to a fair trial and to privacy. The best known genesis of civil liberties is the Magna Carta (Latin for "Great Charter", literally "Great Paper").

Also called Magna Carta Libertatum ("Great Charter of Freedoms"), it is an English charter originally issued in 1215. Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today.

Unlawful

For modern times, the most enduring legacy of the Magna Carta is reposed in the right of Habeas Corpus which in common law countries is the term ascribed to a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

Known as the "Great Writ", a writ of habeas corpus ad subjiciendum is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody.

The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right of habeas corpus -- or rather, the right to petition for the writ -- has long been celebrated as the most efficient safeguard of the liberty of the subject. The great jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".

In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they are generally not called "habeas corpus".

There are instances where preventive detention will be necessary. Alan Dershowitz, Professor of Law at Harvard University, in his book Pre- emption -- A Sword that Cuts Both Ways, asserts that " There is a desperate need in the world for a coherent and widely accepted jurisprudence of pre-emption and prevention, in the context of both self-defence and defence of others".

Of course, here Dershowitz is referring to the international scene, but it would not be wrong to ascribe this principle to the national level when there is a dire need to control anarchy and insecurity of a nation.

However, the bottom line for any preventive jurisprudence in the omestic context is the social contract theory where State authority must be derived from the people.

There must be a preventive jurisprudence in place governing the acts of the executive and law enforcement officers. Preventive acts must never be ad hoc, or decided at the whim of the law enforcer. If this were not to be the case, as Alice said: "There is a mistake here somewhere".

The writer is Coordinator, Air Transport Programmes, International Civil Aviation Organization, Canada.

Copyright 2006 The Associated Newspapers of Ceylon Ltd.