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Double Jeopardy : Arrested Pak students needs justice & fairness
by Amjad Malik
On 8 April 2009, twelve students mostly Pakistani nationals were arrested at Manchester in a suspicion of terrorism related offences in a rushed police operation �Pathway�. At the time of writing this article those detained have been off loaded from �terror charges� to national security considerations on behest of Home Office and are handed over to UK Border Agency. Home office has indicated that they will be removed from UK being a threat to country�s �national security� having maligned in international terrorism. Prime Minister Gordon Brown initially indicated that police have foiled �a very big terrorist plot.� Pakistan as a state was subject to a negative media frenzy and individuals and their families were without counsellor access in breach of Art 36 of the Vienna Convention on Consular Relations 1963 and all those detained were on periodical remand until a decision was made not to charge them within 28 days and they had a limited access to basic rights guaranteed by (ECHR) European Convention on Human Rights 1950 as well as country�s Police and Criminal Evidence Act 1925 (s.25) such as free access to their attorneys, contacting their families, medical check up to avoid torture, interpreters, counsellor service access etc.
If they appeal their deportation orders, they will have a free standing right of appeal before �Special Immigration Appeals Commission� set up in 1999 which is a specialist tribunal adjudicating appeals where a person is considered to be a threat to national security of the country. Tribunal consists of a Senior High Court Judge, one Immigration Judge as a member and one person from KPMG group having experience of dealing with security matters & evidence. Its proceedings are conducted in half camera and half public. In the camera proceedings a Special Advocate is appointed by the Govt to protect the interest of the accused in secret session where all the secret evidence is presented and analysed. It�s a lengthy and a time consuming process and require diligence and hard work if the accused wishes to clear their names. Without winning appeals these students if deported considering them a threat to UK, it will be difficult for them to return to UK, USA and or Europe for further studies or employment in future and even in Pakistan they will be subject to strictest interrogation for their alleged conduct. Therefore we feel that its double punishment for them as UK has not enough evidence to try them, but they are not considering them innocent until proven guilty either, and have labelled them though with a lesser but more deadly global immigration charge of national security threat which acts like a ticking bomb. Person with a threat to country�s security will struggle to get his life back until he has a clean chit from a court of law if he is innocent.
In 1999 when I was conducting first appeal of Special immigration appeals Commission, I was young in the profession and was led by the likes of Sibghat Kadri QC and Nicholos Blake QC. We fought that case as a legal battle being the first case of its kind and fought till the end of course pro bono as no legal aid was available for SIAC cases. We won relief for the accused who was a Minister of Religion working in Oldham. We went till House of Lords, and even took The Lord Chancellor to Court of Appeal for the grant of legal aid [In 1999 R v Lord Chancellor [1999] Ex part Rehman (unreported), Times Law Report on the 8th July 1999]. Despite several unsuccessful efforts legal team never lost heart and continued struggling for fairness, equality & justice to obtain funding in not only his outgoing remitted appeal case of Rehman before SIAC but other cases as a matter of policy. All these efforts were fruitful when Government announced to include extension of legal aid in SIAC proceedings under s.116 of the new Immigration and Asylum act 2002.
Post 9/11 Fundamental human rights are clouded under political public policy where most of our basic human rights are subject to unlimited restrictions and on the discretion of Home Secretary where rights of individuals are up against the issue of public safety and security of the country which is an alarming trend, It also entails risks of �miscarriage of justice�. Most of those arrested on terror related charges face enormous difficulties to get their normal life back even after years as trauma never leaves them alone and societal pressure forces unknown prejudice and discrimination out of fear.
International law is very clear on the issue of individual�s liberty Clause 29 of the Magna Carta ensures that �no freeman shall be taken or imprisoned or have his liberties removed but by lawful judgement of his peers�. This 800 years old tradition is mirrored in Article 5 of the European Convention on Human Rights 1950 where it was pledged that �Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law� and due process of law and fair trial were considered as the basic ingredient of a citizen�s freedom. Article 6 of the same convention ensures that citizens are guaranteed a fair trial, a right to an interpreter and an attorney to defend themselves if they are to face a charge by a state. Though we are living in Great Britain which claims to be �the mother� of human rights but 9/11 and 7/7 has changed the whole picture. The rights of individuals are scarified slowly at the altar of the rights of a state and on the name of �public safety� we are slowly drifting into a �nanny state� where our each and every action is monitored through thousands of cameras and our email messages and phone calls are taped, though rightly so due to the new fear we are in. But miserably these pieces of evidence are yet to see the court room in any criminal trial which requires positive legislation in the parliament. Due to distrust & lack of international intelligence sharing mechanism often those mails, messages and motions are misinterpreted, and hence we see sudden arrests, media flogging and either mistrial or trial of error. In the end, there is no apology for intelligence failure, no talk to compensating those victims or no regrets, though from Pakistan UK expects to have their death row cases reverted and pardoned, and that�s injustice and unfair treatment and is not equal treatment between states and its citizens.
I must admit British courts despite all clouds played genuinely a praiseworthy role by separating the chaff from grain. They ensured that due process of law, fair trial and citizens liberties remain intact whilst govt ensures to protect the public and judgements in last 10 years post 9/11 are the epitome of such confidence on the courts. However, life would be miserable if we are to live on fear and sacrifice the basic rights and these liberties which were achieved by continuous sacrifices of our ancestors. Threats emanating from a few fanatic or outfit can be defeated by mutual cooperation and sharing the intelligence and pre arrest home work and by making intercepted material as an admissible evidence so as to secure more convictions against those who are involved in such heinous crimes. In the absence of some concrete steps, minority community will carry on living in fear and will be demonised by media on the name of �war on terror�, �international terrorism� and �islamophobia�.
Those involved in terrorism must face an exemplary punishments but the process must be fair to root out any doubts of �miscarriage of justice� in the minds of the victim community. When I look back I wonder whether under the circumstances can we ever redo these cases pro bono , the answer is �difficult� but �possible� as the stigma attached to lawyers working day in day out in the most sensitive cases around the world defending human rights and values is greater than ever before. Despite all the difficulties, the day we lose the spirit to uphold law, on that very day we leave justifying to remain in the same honourable profession standing on principles of equality, justice and fairness for which our forefathers fought wars.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and has done LLM on national security law and a member of Law Society�s Immigration Law committee and sits on Foreign Office�s pro bono Law panel
23 April 2009
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