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How to turn a home
into a jail
When Aung San Suu Kyi,
pro-democracy opposition leader in Burma, was told last November
that she faced another year under house arrest, there was widespread
criticism from human rights campaigners around the world.
Suu Kyi has already spent 15 years unable to freely leave her home,
in a country described by the United Nations as a "saga of untold
misery, suffering, oppression and exploitation".
For the people of Burma, also known as Myanmar, playing a
pro-democracy song can mean a seven-year prison sentence. More than
60% of the population live on the equivalent of less than 60p a day
and only 19p per person is spent on health care.
The country is politically a world apart from the UK and yet last
week Charles Clarke, the home secretary, faced claims that he had
brought the two nations a step closer.
Mr Clarke announced that British citizens suspected of terrorism but
not charged will be subject to house arrest or having their
movements controlled, if there was not enough evidence to prosecute
them.
He told MPs he was reacting to the law lords' ruling to end the
detention without trial of foreign nationals suspected of being a
threat to national security.
Instead, in what the government claims is a more humane approach, he
intends to introduce executive control orders that can be issued
against British and overseas citizens.
The orders will be individually tailored to the threat posed by each
suspect and be designed to disrupt their activities. People subject
to the toughest orders, which could be indefinite, may be forced to
remain in their homes without access to computers or telephones.
Those considered less dangerous will have their movements controlled
by electronic tags and curfews.
Clearly, the way house arrest is used across the world is different.
Burma used the law to crack down on opposition, while authorities in
the UK say they are acting to protect UK citizens. Last week, the
home secretary said there were "serious people and serious
organisations trying to destroy our society". He accepts the
proposals are controversial, but says the threat is real.
However, only in a time of war have European countries agreed on
such extreme measures. In 1940, Sir John Anderson, then home
secretary, made orders for the detention of 1428 people – some of
whom were sent to internment camps. Lord Hoffman, the law lord, said
"the real threat to the life of the nation comes not from terrorism
. . . but from laws such as these".
Anti-terrorist laws in France allow suspected terrorists to be
detained for up to three years without trial, but lawyers argue the
French system is fairer than the measures being considered in the
UK.
The process requires evidence to be presented, which the defence is
able to contest.
Last week, Spain was criticised for its anti-terrorist measures,
including proposals to hold suspects for 13 days without access to a
lawyer, but again the measures work through the criminal justice
system and not the minister.
"Spain suffered the worst act of terrorism since September 11 and
yet they still regard the criminal justice system as an efficient
way to deal with it," says Ben Ward, special counsel to Human Rights
Watch.
"It is highly unusual for a democratic society to consider the
imposition of house arrest where there has been no conviction or
trial. This has been compared to the imposition of antisocial
behaviour orders (ASBOs) but they are decided by a court rather than
on the say-so of the home secretary. There may be some independent
judicial review but the detainees will have no access to the
evidence. The use of house arrest is troubling particularly given
that the order may be indefinite."
Countries such as China, Algeria, Zimbabwe, Cuba and Vietnam have
been known to detain people or use house arrest without trial. China
has kept volatile opponents under house arrest at politically
sensitive times. In June 2004, during the fifteenth anniversary of
the Tiananmen Square massacre, a number of well-known activists were
confined to their homes by officials. But China also lacks an
independent judicial system and is accused of police brutality and
corruption.
The British measures will replace the 2001 Anti-Terrorism, Crime,
and Security Act introduced by David Blunkett, the former home
secretary, in response to the September 11 attacks. The act meant
foreign nationals suspected of involvement in terrorism could be
held indefinitely without trial.
The new orders will be issued by the home secretary, rather than by
a court, on the basis of reports from MI5 and the police. They could
be challenged before a judicial panel, although this would be able
to sit in secret, and evidence against the suspects might be
withheld from them and their lawyers on security grounds. A bill is
expected within weeks, but with an election on the horizon it is
unlikely to become law until the summer.
Mr Clarke said the powers met human rights objections but he has
acknowledged that allowing suspects to be held under house arrest on
the orders of a politician marked a substantial increase in the
executive powers of the state in relation to British citizens. He
said: "This will be contentious but I believe the need for us to
protect ourselves against the threat justifies the changes I
propose."
Ministers have argued that using house arrests or tagging would be
less restrictive than the current system of being held in a
detention centre.
The 12 men currently held in Belmarsh without expectation of trial,
from Algeria, Tunisia, Egypt and Jordan, have been held for three
years under the 2001 act. They will not be released until the new
measures become law. When they are freed, they are likely to be
subjected to the control orders.
In theory, some or all of the nine British Muslims released from
Guantanamo Bay could also be placed under house arrest if they are
considered a threat.
House arrest is already in use against one of the detainees, an
Algerian identified only as "G", who was freed on bail from Belmarsh
high-security prison in London last year because of illness.
He is allowed to live at home but is electronically tagged and must
make five calls a day to the tagging company. He is also forbidden
any computer equipment that might enable him to use the internet.
Kate Allen, the UK director of Amnesty International, said: "However
he puts it, the home secretary is giving himself the power to place
anyone in the UK under house arrest, without charge or trial, based
on secret evidence."
Under the European Convention on Human Rights (ECHR), a key defence
will be whether the legislation is proportional to the threat. If
the proposals become legislation and are challenged by Strasbourg,
ministers will have to prove that any measures are proportionate to
a serious terrorist threat to the UK.
Unfortunately such a defence is difficult to explain to the public
because it is shrouded in secrecy.
"It would be useful if the government could illuminate further and
in greater detail the seriousness of the threat these people may
pose to national security," says Magnus Ransthorp, a terrorism
expert at St Andrews University.
"It is a double-edged sword. Clearly the government feels there are
matters which cannot be disclosed publicly but it would be
preferable to have some type of court proceeding before placing
individuals on these types of monitoring schemes.
"The phenomenon that is loosely referred to as al Qaeda is very
active on the internet which they use to incite, propagate and
connect individuals together so perhaps restricting their access
might help. But the security services could monitor internet use and
telecommunications without placing people under house arrest."
Civil rights campaigners have even warned that taking extreme
measures is likely to increase support for groups such as al Qaeda.
David Davis, the shadow home secretary, said: "The Home Secretary
could find himself confining one known terrorist only to recruit 10
unknown terrorists."
Security issues are reserved to Westminster but Scotland adopted the
ECHR under different legislation. The Scotland Act states that
Scottish ministers cannot act in a way which is incompatible to ECHR.
Unlike Westminster, the Scottish Parliament cannot pass legislation
which would require a derogation.
Alan Miller, director of human rights at McGrigor Donald and an
international expert on the subject, said: "There is a weaker
protection of human rights at Westminster level than exists at the
Scottish parliament.
"MPs have a greater responsibility than they have so far exercised
with regard to the human rights compatibility of legislation which
has been passed."
He warns that such measures can lead to the UK being compared to
countries such as Nepal and Iraq. "The danger of the UK and US
introducing measures such as this is that it enables other
countries, where there are not the same checks, to implement further
reaching proposals on the pretext of them being anti-terrorists. It
weakens and undermines the whole international rule of law on human
rights and undermines the framework of the credibility of human
rights."
Source: The Herald
31 January 2005
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