Should human rights thrive in times of terrorism?

Every healthy democratic state prides itself on its human rights record and its will- ingness to uphold principles of equality, human dignity, liberty and due process. These principles are invariably contained in domestic law and form part of the state’s international obligations, and a breach of them gives rise to possible breaches of the law and national and international criticism. However, these rights cannot be enjoyed absolutely and in times of emergency they may need to be compromised for the sake of the state and the rights of its citizens. Events such as 9/11 and the bombings in London in 2005 have resulted in the passing of a number of legislative provisions which were intended to restrict indi- vidual liberty and human rights in the name of public safety and national security. Recently, for example, legislation has been rejected extending the period of police questioning of those suspected of terrorist offences to 42 days. This begs the ques- tion whether the enjoyment of human rights can survive emergency situations such as the imminent threat of terrorism and whether those suspected or found guilty of acts of terrorism should be able to rely on human rights law. International law provides some guidance in this respect, accepting that states may further restrict some human rights during times of war and other public emergency, and stating clearly that such measures cannot infringe on the most fundamental rights such as the right to life and freedom from torture. In other cases, however, the exceptional measures must be reasonable and proportionate; but who decides where the balance lies between protecting basic rights and safeguarding national security and public safety? Although basic notions of civilised society should not be abused even in times of emergency, it should be accepted that for a true democracy to survive in the face of terrorist threats extra measures need to be taken which invariably impact on per- sonal freedom and normally accepted ideas of justice. Thus, although it can never be acceptable to torture a suspected, or indeed convicted, terrorist, that individual’s ✓ ➔ M02_FOST0405_04_SE_C02. indd 25 25/01/16 4: 28 pm 26 Part 1 · Preparing and writing law assignments Example Assume that the student is answering the question, ‘ What are the essential features of the British Constitution? ’ An unstructured answer might look something like this: ‘The British Constitution is unwritten, but most other constitutions are written in a formal document. Some constitutions are rigid and cannot be changed except without a special proce- dure. This is not true of the British Constitution, which is flexible. The sources of the British Constitution are both legal and nonlegal and consist of statutes, case law and constitutional conventions. Parliament is regarded as sovereign and can pass what- ever law it wants. The British Constitution has no formal bill of rights, and Parliament can pass what- ever law it chooses. A central feature of the British Constitution is democracy and the House of Commons is elected. Other features are the rule of law and the separation of powers. ’ ✗ right to liberty of the person or a fair trial will need to be compromised when the special dangers posed by the terrorist threat require giving state authorities extra powers of questioning, or where the traditional rules of a fair trial (such as the gathering and disclosure of relevant evidence) would not be appropriate and would greatly injure the general public interest. Equally, during such times it should be accepted that the balance must be achieved by democratically elected and accountable government, and not, ultimately, by judges applying abstract and inflexible principles of justice. Thus, human rights law accepts that basic rights must be compromised during these times and, subject to evidence of clear abuse of power, judges should leave the balancing exercise to the laws of Parliament and the judgment of accountable government officers. In conclusion, basic human rights should survive in times of terrorism, but they should not thrive to the detriment of the greater public good in securing public safety, or obstruct government’s bona fide efforts to protect its territory and its citizens.