Sunday, July 4, 2010

Universal Declaration of Human Rights (Part Two)

By Don Pratt

Part one of this essay used articles 1, 2, 3, 5, 7 and 8 of the Universal Declaration of Human Rights (UDHR) to illustrate how the fundamental rights and freedoms of Dr. Hassan Diab have been undercut by the extradition process. The second and final part of this essay relies on articles 9, 10, 11(1), 12, 18, 19, 20(1) and 23(1) to further demonstrate the injustice of this situation.

Article 9. No one shall be subjected to arbitrary arrest, detention or exile.
The arrest and detention of Dr. Hassan Diab with the intent to exile him via extradition has been conducted on very weak and arbitrary grounds. Attempting to extradite and prosecute someone on the basis of unsourced intelligence and manifestly unreliable handwriting evidence certainly qualifies as jurisprudentially “arbitrary”. Courts in the common law tradition (Canada, British, the United States, etc.) consider unsourced intelligence to be manifestly unreliable and therefore inadmissible as evidence.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
An extradition hearing does not offer a level playing field for the defence. In Canada, Hassan will not receive a “fair and public hearing” because, as the Crown Attorney is fond of reminding the court, “an extradition is not a trial”. The requesting state enjoys the token evidentiary standard of presumptive reliability. France need only make out a prima facie case and can introduce “new evidence” at any time. Any “evidence” thus introduced is assumed to be true unless the defence can bring compelling and overwhelming evidence to the contrary. By contrast, evidence introduced by the defence must survive a rigorous double test. First, the defence must vigorously petition the court to allow its own evidence to be admitted. If this evidence is admitted, then it must withstand challenge from the Crown at the extradition hearing. Even if the defence manages to significantly undermine France’s case, the principle of comity (diplomat-speak for a “gentleman’s agreement” between nations) suggest that France may still get the benefit of the doubt. An inequality of arms that would be considered a gross violation of procedural justice in a criminal trial is permitted in extradition on the basis of “respecting Canada’s international obligations” and the belief that the defendant will receive a fair trail upon arrival in the requesting state.

This belief, however, is highly problematic in the case of France’s draconian counter-terrorism judiciary, which imposes significant restrictions on the rights of the accused. Attempts by the defence to challenge the dossier by calling evidence or cross-examining witnesses is risky and will be seen as an affront to the integrity of the judiciary itself.

The routine acceptance of unsourced intelligence as “evidence” by the French counter-terrorism judiciary further handicaps the defence. Secret evidence is inherently unfair because it contradicts the principle that a trial must be public in order to be fair. As the human rights organization JUSTICE has noted, “the use of secret intelligence violates the principle of a public hearing because secret evidence is not public. It is an affront to basic principles of fairness for the courts to determine issues of fact by reference to evidence not disclosed to a party”.

Article 11 (1). Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
The termination of Hassan’s teaching contract by Carleton University in the Summer of 2009 represents a serious violation of his right to the presumption of innocence. In the words of the Canadian Association of University Teachers (CAUT), Carleton’s dismissal of Hassan “show[s] a blatant disregard of the principles of natural justice and due process [and] the legal right of an accused to the presumption of innocence”. The university’s actions were also condemned by the Canadian Union of Public Employees (CUPE), the Canadian Labor Congress, 30 members of the Department of Sociology and Anthropology at Carleton University, the Public Service Alliance of Canada (PSAC), and the National Post newspaper. To this day, Hassan is unable to find work.

Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Dr. Diab’s privacy rights were stripped away through media leaks more than a year before his arrest. Those leaks were followed by bold and aggressive surveillance that lasted up until his arrest in November 2008. During that period, mysterious persons in cars with tinted windows followed him around town and attempted to break into his residence. Since his release on very strict bail conditions in April 2009, Hassan has been experiencing surveillance on a nonstop, round-the-clock basis via a GPS monitor, which he must wear at all times. On top of that, Hassan bears the burden of paying for this surveillance himself. Once you become the target of surveillance in the name of “national security”, you no longer have a private life.

Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
These two articles uphold the principle that everyone has the right to believe what they want and to express their beliefs and opinions to others.

The McCarthyesque atmosphere surrounding the “war on terrorism” inclines anyone who is accused of involvement in terrorism (regardless of guilt or innocence) to second-guess almost every thought and action. Even the most innocuous, apolitical activities, such as attending a movie or checking a book out of the library, may be scrutinized as possible “evidence” of involvement in nefarious activities. Given the heavy reliance of French magistrates on speculation and innuendo (examples of which abound in the Record of the Case) in lieu of evidence, the innocent person would be well-advised to emulate a monkish lifestyle.

Article 20. (1) Everyone has the right to freedom of peaceful assembly and association.
Just as with freedom of thought, opinion, and expression, a person who faces terrorism charges must exercise a near-paranoid level of caution when considering with whom to associate. The guilt-by-association logic that authorities apply to terrorism cases makes this true even for the most trivial or fleeting forms of contact and involvement. French counterterrorism laws codify a particularly broad and vague guilt-by-association offence known as "criminal association in relation to a terrorist undertaking" (association de malfaiteurs en relation avec une entreprise terroriste) which forms the cornerstone of France’s “preventive approach” to terrorism and carries a maximum sentence of 20 years in prison. This highly controversial statute has been criticized by Human Rights Watch and other rights organizations for sacrificing basic rights and as “wrong in principle and dangerous in practice.” The lack of legal certainty in the association de malfaiteurs offence leaves it open to arbitrary interpretation and application while absolving investigating and prosecuting authorities from any duty to link alleged participation with any actual execution of a terrorist offense or even a verifiable plan for the execution of such a plan.

Article 23. (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
As mentioned under Article 11 (“innocent until proven guilty”), Hassan’s ability to work has been severely undermined by Carleton University’s unfair decision to terminate his teaching position. Given the grave stigma associated with the charges he faces, Hassan will continue to have difficulty finding work. Even if he is ultimately cleared of all charges, the damage to his reputation will be permanent and will seriously compromise his life opportunities.

The extent to which the extradition process has diminished Dr. Diab’s fundamental rights and freedoms is well illustrated by the foregoing review of articles of the Universal Declaration of Human Rights. This analysis highlights the unfairness of extradition law as well as serious handicaps imposed on the defence at all stages of the legal process. This analysis also reveals the inter-connectedness of rights and freedoms. Violation of one right often produces a cascade of violations to other rights and freedoms.

Hassan’s case also shows how slapping the “terrorist” label on a person severely damages his reputation and livelihood. As Justice O’Connor noted in his report on the Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, “labels have a way of sticking to individuals, reputations are easily damaged and when labels are inaccurate, serious unfairness to individuals can result.” Given the tendency for national security investigations to focus on members of the Arab and Muslim communities, the potential for infringement on the fundamental rights of innocent Canadians within these groups is higher. Those responsible for enforcing anti-terrorism laws must therefore be particularly sensitive to these human rights concerns. Otherwise, lives of innocent people will be ruined.

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