A key British judicial figure and senior Cabinet minister has denounced Guantanamo Bay as a “shocking affront to democracy” and says nations must not sacrifice values in the fight against terrorism.
Britain’s Lord Chancellor, Lord Falconer, delivering a lecture today at the NSW Supreme Court, questioned the constitutional basis of the US’s treatment of prisoners at Guantanamo Bay.
He said the response to terrorism must be conducted in accordance with fundamental principles of human rights.
Otherwise, he said, the values the west was defending in its response to terrorism were compromised.
Under recent amendments, as Lord Chancellor, Lord Falconer acts as “the bridge between the judges and the executive” but is no longer head of the judiciary, no longer a judge, and no longer speaker of the House of Lords.
He is also Secretary of State for Constitutional Affairs.
Delivering the annual Magna Carta Lecture at the Supreme Court to an audience of MPs, judges and academics, Lord Falconer did not wish to “enter the debate here in Australia about human rights”, but he said judicial control over the executive government was critical in a modern democracy.
“It is a part of the acceptance of the rule of law that the courts will be able to exercise jurisdiction over the executive,” Lord Falconer said.
“Otherwise, the conduct of the executive is not defined and restrained by law.
“It is because of that principle that the USA, deliberately seeking to put the detainees beyond the reach of the law in Guantanamo Bay, is so shocking an affront to the principles of democracy.
“Without independent judicial control, we cannot give effect to the essential values of our society.”
Australian David Hicks has been incarcerated at Guantanamo Bay, Cuba, since January 2002, a month after his capture among Taliban forces in Afghanistan.
Mr Hicks had previously pleaded not guilty to charges of conspiracy, attempted murder and aiding the enemy.
But following a US Supreme Court ruling in June, declaring illegal the military tribunals set up to try him and other Guantanamo Bay inmates, those charges were dropped.
Mr Hicks applied for British citizenship earlier this year in the hope that the UK would lobby for his release from Guantanamo Bay, as it has for other British subjects.
All nine British citizens – some of whom were dual citizens – who were detained at Guantanamo were released in 2004 and 2005.
The Australian government has left Hicks’s fate in the hands of the US military.
Lord Falconer said it was up to the Australian government to decide what action to take in relation to Hicks.
“We don’t think Guantanamo Bay is consistent with basic democratic values, but the steps to be taken on behalf of Mr Hicks are a matter for the Australian government, just as the British government took particular steps on behalf of its passport holders.
“(Hicks) is no longer, as I understand it, a holder of a British passport.”
Lord Falconer said a balance needed to be struck between defending ourselves against terrorism and protecting human rights.
“We have found ourselves under attack by terrorists in ways we would have found unimaginable only a few years ago,” he said.
“Laws do have to be changed to deal with this new and sustained threat, but the response to terrorism must be conducted in accordance with fundamental human rights principles.
“We must recognise that national security is not a wand which sweeps away human rights, and human rights is not a barrier which prevents a state from protecting itself against those who would destroy it.”
Lord Falconer warned against sacrificing democratic values in the fight against terrorism.
“For us to succeed in a battle which seeks to undermine our very way of life, we must win not just by the strength and effectiveness of the coercive and security apparatus of the state, but also because of the superiority of the values of our society over the values of those who attack us,” he said.
“Without these values, what we are fighting for can get lost in the way we fight.”
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