When rights clash with state interests, which is supreme?

2014-11-23 05:18

Simply put , when your rights  clash with state interests which is worthy of supremacy?

We know that in the so dubbed 'war on terror' innocent civilians were often and routinely apprehended ,tortured and abused by coalition forces. We also know about renditions that took place and, I would not be surprised, are still taking place.

The chance of these hapless victims suing the governments concerned appeared pretty slim.Invariably state resources and power served as a strong deterrence to those who sought justice.

Surprisingly therefore the British courts have allowed a Pakistani national, Yunus Ramatullah, who fell foul to such abuse, to institute action against the government despite plea by the government that if this were allowed it would "damage relations with the United States."

The UK forces participated in the unlawful detention ,torture and rendition of Mr Ramatullah before handing him over to the Americans who allegedly further abused and detained him at the notorious Abu Ghraib prison in Iraq.

The judge George Leggatt who heard Mr. Rahmatullah’s petition rejected the argument of the British government.

He said that “For the court to refuse to decide a case involving a matter of legal right on the ground that vindicating the right would be harmful to state interests would seem to me to be an abdication of its constitutional function”.

This is encouraging for it puts government within the parameters of judicial scrutiny for it is not the first time that the British justice system came to the rescue. About three weeks ago, a British appeals court allowed a Libyan politician, Abdel Hakim Belhaj, and his wife, Fatima Bouchar, to bring a case against the British secret service, MI6, and the former British foreign secretary Jack Straw wherein they allege MI6 of complicity with the CIA in their detention, deportation and subsequent torture in their home country a decade ago.

There is a compelling public interest in the investigation by the Engiclish courts of these very grave allegations,” the court ruling went on to say.

This case sets a precedent for us in SA.Following the Constitutional Court ruling in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] ZACC 30] when the court held that human rights abuses committed elsewhere can be investigated and,either handed over to the ICC if the accused country would not investigate and prosecute, or prosecute in SA on the grounds of the principle of "universal jurisdiction" now becoming part of our constitutional jurisprudence.

So when it comes to human rights v state interests I guess the UK judgment together with the judgment I cited endorses the growing expectation that rights will triumph over state interests where the former have been abused.

This requires a very strong and vigilant ciivil society activism. We must cease being apathetic and complacent  and become activists against those in government which are complicit in malfeasance and abuse of power and use the interests of state as a  foundation of their action.

The cases I have cited lend support that under our principle of constitutionalism and rule of law,governments can be held accountable for their conduct.

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