Sunday, February 25, 2007

Rule of Law Triumphs in Canada

While the struggle between insecurity and rule of law continues to wage in the US, Canada has put its foot down and declared the winner - rule of law, hence democracy. As noted by Tony Arend in two recent posts, what the Canadian Supreme Court decided is indeed laudable. By a vote of 9 - 0, with both liberals and conservatives on the Court, the decision indicates that the issue rises above political partisanship and speaks to the basic tenets of democratic society.

Canada's Chief Justice Beverly McLachlin says in the ruling: “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process.”

This decision should also be viewed in comparison to the US stance on the issue. The Military Commission Act of 2006 blatantly retracts basic rights, such as habeas corpus, from non-US citizens (see previous posts). Furthermore, recent court rulings underscore the slippery slope the justice system is sliding down. Last week a federal court in Washington DC upheld that Act and struck down petitions representing the aspirations of dozens of Guantanamo detainees to a fair day in court.

Here are excerpts from some articles on the decision:

New York Times - Canadian Court Limits Detention in Terror Cases
OTTAWA, Feb. 23 — Canada’s highest court on Friday unanimously struck down a law that allows the Canadian government to detain foreign-born terrorism suspects indefinitely using secret evidence and without charges while their deportations are being reviewed.

The detention measure, the security certificate system, has been described by government lawyers as an important tool for combating international terrorism and maintaining Canada’s domestic security. Six men are now under threat of deportation without an open hearing under the certificates.
....

“We’ve started to see the rollback,” said Alex Neve, the secretary general of Amnesty International Canada. “Today the Supreme Court of Canada has said, ‘Make sure you put human rights at the center of how you prevent terrorism.’ ”

Top court overturns federal security certificates
CTV.ca News Staff Updated: Fri. Feb. 23 2007 10:38 PM ET
The Supreme Court of Canada (SCC) unanimously ruled today that federal security certificates, used to detain suspected terrorists, are unconstitutional. The 9-0 judgment found that the system violated the Charter of Rights.

The certificates allowed government officials to use secret court hearings, indefinite prison terms and summary deportations when dealing with non-citizens accused of having terrorist ties.
...

That process is a violation of fundamental justice, wrote Chief Justice Beverley McLachlin.
....
The judgment is not saying that the detentions are wrong, but that the accused must have access to the evidence against them, said Thompson.

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10 Comments:

Blogger CB said...

Canada was not attacked and has not fought. The rights of U.S. citizens are not effected by the treatment of enemy combatants taken while engaged against our forces.

Conservatives on the Canadian court are more akin to Nancy Pelosi, while the others are more like Hugo Chavez.

The last good ruling from their court was with regard to the unfairness that their vaunted (by liberals) healthcare system was fatally flawed and inherently unfair.

11:59 AM  
Blogger Edie said...

So how are you? I've neglected the bloggers lately but wanted to say hello and catch up a bit.

I wonder that you haven't taken cb to task for implying that average Americans aren't vulnerable to the curtailment of the rights of those deemed "enemy combatants" by the government, since we have seen how arbitarily this term has been applied and how tragic, outrageous, and chilling an effect it has had on our civil liberties, including the right to free speech.

12:18 AM  
Blogger Dahlia said...

Thanks Edie. CB is an old friend on Just Dahlia and we just about disagree on everything. When I see reactions like his to the issue of how we treat the "enemy", I just throw my hands up in the air. Aside from the fact that we may be inflicting numerous injustices by torturing and depriving innocent people of basic human right, such a position is not only sadly replete with arrogance and self-righteousness, but more sadly it ignores the very values we are supposedly fighting to maintain! The fact that some can't see the blatant contradiction makes me wonder if those values are in fact hot air. I choose to think they are real.... If they are real then we can't throw the baby out with the bath water. Treating the enemy as they may treat us means that in the end we are the same. I chose to believe that we are different, and so I expect us to act that way. It is only in so doing that we become that "shining city on the hill".

9:40 AM  
Blogger CB said...

It is one thing to read press reports of incidents, it is another to believe that were these verified that they are endemic.

If you simply look at the issue from the standpoint of jurisprudence, were we to even extend Geneva Convention rights to those coming from non signatory nations, not fighting under the banner of any state, you erode the protections the accords provide to the compliant.

If you took the extra step to extend rights to enemy combatants that American citizens have, then they in fact would recieve benefits beyond those entitled by birth or naturalization to be called Americans. This is true in the same way we now extend legal protections to illegal aliens.

Finally, we don't cut off heads, as does our enemy. We don't intentionally target school children or innocents in a market. In fact, we bend over backward to provide Qua'rans, prayer rugs, dietary preference and other religious accomodations in a way that no aggrieved people ever has. Moral equivalents don't come close to existing in this discussion.

1:50 AM  
Blogger Antiquated Tory said...

Hello, followed you from Abu Aardvark, am an 'Aqoul lurker and occasional commenter.
Thought your comments at AA were very sane, rational etc.

Are you sure moral equivalence is even the framework for considering these issues? How do you operationalize the moral high ground? As far as I understand it, I applaud the Canadian Supreme Court's decision, but not out of some deep liberal fwuffy wuv for anyone. Rather, you either have rule of law or you don't, and preserving it is one of the few principles, perhaps the only one, that I think must always determine policy.
Has there been much study of other 'emergency' suspensions of legal protections? I believe both the US and the UK (and therefore also Canada?) had quite draconian measures in place against critics of the war in WWI. (This should also be remembered by the current Chicken Little crowd--bad as some of the things now going on may be, they are nothing compared to how our countries have behaved in the past, yet democracy somehow survived.) In retrospect, these laws were perceived as unjust and unnecessary, such that in WWII, for example, the various British emeregency laws were far less severe than in WWI, even though the existential threat was far greater.
Am I right in thinking this?
Anyway, the historical lesson seems to be that draconian, heat of the moment 'emergency' security laws that go against the spirit, if not precisely the letter, of a modern liberal country's legal traditions invariably prove to be embarrassments in retrospect. Hurrah to the Canadian Supreme Court for wanting to do things correctly.

10:44 AM  
Blogger Dahlia said...

Welcome AT - thanks for your great comment.
I don't view myself as a liberal after "fwuffy wuv", but I do strongly believe in the social utility of the rule of law... I stress social Utility, not social morality.
Where utility and morality coincide, as they usually do, by the way, all the better. However, upholding the rule of law serves society's intersts when it is strong and when it is weak. Unfortunately, at times of stress coupled with a sense of strength, sense of invincibility tends to cloud judgement. What I mean by all this is that because the West views itself in a stronger positon, both materially and morally, it allows itself to forget that the Rule of Law serves it well especially when faced with threats. It is the Rule of Law which gives it the ability to claim the moral high-ground and hence fight to protect it when others don't respect it. Hence, if we don't uphold our Rule of Law, the fight is already lost.

1:13 PM  
Blogger CB said...

Lincoln suspended Habeus Corpus, FDR interned citizens without trial and confiscated property. The British Emergency laws, were passed upon by both Houses of Parliament.

To suggest that what has occurred with enemy combatants does not comport with the rule of law, has no basis in fact. It has been openly litigated in our courts.

I think Roe v. Wade is terrible law. It created rights no legislature or document to that point had recognized. Even the liberal justice Ruth Bader Ginsberg acknowledges it is terrible law. Yet it is law.

I don't agree with the ruling, but it is the rule of law. Just because you or I don't like a ruling, doesn't mean that it doesn't pass the test of the rule of law.

6:57 PM  
Blogger Dahlia said...

Yes, past presidents have suspended civil liberities.. that does not make it right then or now...
A law which applies to one category of people and not others is not rule of law, it is rule of tyranny. I can recount numerous examples of where this has ocurred thoughout history, most notably in the past century. Again, that does not make it right then or now...

9:39 AM  
Blogger Renegade Eye said...

We are being conditioned like the frog in the hot water, to give up rights. It seems it is ok, to be filmed everywhere you go as an example.

I've been following the Canadian issues on CBC Radio. A conservative from Toronto, is different than a conservative in Nashville, where CB is from now.

5:53 PM  
Blogger CB said...

I am reminded that my rhetoric is sometimes harsh and that relationships that I see as obvious, others do not. I'll try again.

Yes, I agree, any curbing of liberty is not desirable. Americans so love liberty that the words of the patriot Patrick Henry remain emblazoned in the lexicon of this country's founding. In his speech before the Continental Congress in March of 1775, he concluded his fiery oration with this sentence:

I know not what course others may take; but as for me, give me liberty or give me death!

I am no fan of central government strong handedness. In fact, it is antithetical to my views. I am more libertarian than conservative. Being skeptical of government authority is an instinct that, it appears, we share.

One of the precepts upon which the several states consented to the authority of the federal government was spelled out in the preamble to the Constituiton..in order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense...

How do you provide for the common defense? In the examples from my previous posting, those Presidents, within their authority, did what they believed was necessary. In so doing, they temporarily suspended civil liberties in severe ways that threatened the tenents upon which the nation was established.

Lincoln had a much more serious crisis to deal with than did FDR, but FDR took much more drastic action. As it turns out, many of those interned were working in cooperation with Japan, but many were not.

With the threat of radical islamists having the expressed desire to destroy our freedoms, some of whom are living among us, it seems our government has taken prudent steps within the scope of law to defend us.

Enemy combatants that are not citizens are treated well, but they are not afforded the rights of citizens. Neither by the way are those in our military. They fall under a different set of rules, the Uniform Code of Military Justice. Their rights are less than those of non military citizens, but no one suggests that their civil liberties have been eroded.

With regard to the Patriot Act, Justice Department oversight has uncovered over stepping of authority by some bureaucrats. There was a public hearing, accountability and correction...it worked.

Terrorist surveillance works in much the same way through FISA. Is there a logical reason not to track the communication of known terrorists, even when one end of the communication is domestic?

The bottom line is, I don't see any erosion of civil liberties without a mechanism for remedy if it does cross the line. What I see are prudent steps taken to provide security within the context of the law.

8:22 AM  

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