|Montreal, January 5, 2002 / No 95|
by Ralph Maddocks
Presumably being well aware of it, the governments of our so called western democracies are always testing the tolerance of the people they govern. They seem to be following closely a statement attributed to Frederick Douglass. In 1857, Douglass said, in part, "Find out just what the people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both."
It seems to me sometimes that there is no infamous act which our so called
democratic politicians are not prepared to undertake, they ignore totally
the wishes of the people and reverse their opinions, perhaps more often
than they change their underclothing. This latest terrorism business has
provided them with a perfect opportunity to ride roughshod over the few
existing protections still enjoyed. Almost daily one reads of this or that
country removing some formerly cherished right. Australia, Canada and the
USA have been doing it over the last few months but it is Britain that
is presently in the lead when it comes to ignoring its traditions of liberty.
Some time ago, I wrote of the European Union's Corpus Juris and the likelihood that it would be pushed down the throats of the British by Tony Blair and his Labour party puppets (see: CORPUS JURIS, le QL, no 39).
It had been my hope that the sleeping electorate of Great Britain would awake and put a stop to this destruction of their unwritten constitution, a constitution which has existed for centuries. Although Mr. Blair is a lawyer by training, the consensus seems to be that he was not an especially good one because, if he was, he could not possibly agree to the abolition of England's treasured liberties. How could he allow the virtual disappearance of Habeas Corpus? A cherished right in all common law countries. Yet, at the Laeken summit in Brussels the other week, fifteen EU states agreed to the introduction of the EU-wide arrest warrant a proposal which would see EU (including British) subjects being arrested and deported to any other EU country to face trial.
One EU paper stated quite clearly, under the title "The Main Components of the Decision", "The European arrest warrant applies to all offences". This measure was agreed to by Blair without the proposals being properly debated at Westminster or even in Brussels. Tony Blair chose to accept the measure docilely and defied British parliamentary convention by agreeing to the proposal at Laeken, despite a House of Lords "reserve," which would have required the government to wait until the Lords had debated the issue before assenting to it. But the reserve is a convention, not a law: Tony Blair can override it – and he has. In effect, one of the greatest impositions on an individual's freedom in many years has gone through on the Prime Minister's nod.
It is highly possible that you could be arrested for an act that you didn't even know was criminal: one of the 32 crimes on the list is "xenophobia," which is certainly not illegal in Britain, quite understandably so. It's hard to think of a more nebulous term? On Monday, 17 December 2001, the above proposals were put before a special plenary session of the European Parliament in Brussels, which was asked to pass it on the nod without any debate. Members of the European Parliament (MEPs) were also invited to vote on a series of amendments which had not even been available for them to read until a few minutes before the vote. Luckily, a small number of MEPs happened to be awake at the time and 32 of them signed a motion objecting to this "procedure without debate," a procedural device which stalls the proposal until the European Parliament has had enough time to debate the issue.
Reluctantly, the President of the European Parliament, Nicole Fontaine, accepted the motion saying that under parliamentary rules she had no option but to allow the issue to be debated more fully, probably in January. One MEP from the UK, Roger Helmer, said: "We have struck a blow for democracy. It is outrageous that a measure with profound implications for human rights and individual liberty should go through on the nod without debate. Traditional British freedoms, like the right to trial by jury, the presumption of innocence and Habeas Corpus, are being undermined in these proposals. They should not go by without full debate. The range of offences to which the warrant would apply are not even offences at all in the UK. And it includes such crimes as forging the euro but not forging the UK pound. If this goes through, we could see British subjects arrested in the UK and sent to face a Greek magistrate in Athens on charges of plane-spotting."
The latter reference is to the fact that twelve British plane spotters spent over a month in Greece's Nafplion prison charged with espionage after allegedly taking photographs of a military air base, even though they had permission to do so. The aircraft which they are accused of photographing are in the public domain anyway. The twelve are now out on bail but must return to Greece next year to face less serious allegations that they collected military information without authorisation; an offence which carries a five-year sentence.
If the aim had been to achieve faster and more efficient co-operation between European police forces, the participants at Laeken failed to say so. The whole business was pushed through as part of the struggle against global terrorism, and at least 19 of the 32 categories of crime listed have nothing at all to do with terrorism, in any way, shape, or form. Why did they find it necessary to tell lies? When politicians lie to us, ought we not expect that the mainstream press would go immediately on "High Alert" as soon as they see that something is being covered up? What the Blair government is trying to cover up here is the abolition of the right of every British citizen, to present his defence speedily, in open court. Worse, under the new act, the demand (no longer a request) for extradition to a foreign jail need not be issued or even endorsed by the Minister of Justice or Attorney General of the European country issuing the warrant; a provincial judge or regional examining magistrate will do.
As we know, the examining magistrate in much of Europe is both public prosecutor and imprisoning judge, combined into one. In Britain, as in Australia, Canada or the USA, such awesome power in the hands of one man is not allowed because he could be legally incompetent or even motivated by some fanatical political agenda, as indeed some are. If a European magistrate demands the extradition of a British citizen, he does not have to furnish one single jot of proof, evidence, witness statement or even make a prima-facie case. Nor will the citizen appear before a British judge, there is no right of refusal and there is no appeal. A European examining magistrate can consign a suspect to remand in custody, meaning jail, until he is good and ready to address whatever he or she is accused of; and that can, and does, take years. Again, there is no appeal, and a British Consul can do nothing for you.
The legal systems used in most of the European continent are simply not compatible with that used in Britain. European Law depends massively on the Napoleonic Code, and Bonaparte was hardly a model for democratic government; as a dictator he abhorred democracy and despised citizen rights. The law he left behind is massively slanted in favour of the state and against the individual. Under the Napoleonic Code, pre-trial detention, it's conditions and duration, are entirely at the whim of the chief prosecutor. Under our Common Law we have many hard won rights, Habeas Corpus, writs of mandamus, duces tecum and other Latin tags, speedy access to trial by a jury of one's peers and the presumption of innocence until proven guilty. In spite of the Latin, what they all mean is that even if accused and charged, you are still a human being, not a pawn in some legal game. The right to protest your innocence, to defend yourself before a judge or magistrate who is entirely independent of the chief prosecutor, is the greatest civil right the British have ever had. By ramming the new measure through with the connivance of his mindless sycophants in the House of Commons, Tony Blair has, using a procedural trick to avoid the House of Lords, thrown it away to rounds of applause in Brussels.
One incident occurred recently which may perhaps highlight the way in which the EU approaches those who have the effrontery to dissent from its edicts. A Swedish citizen, Per Johansson, has been expelled from Belgium and can no longer travel in 14 European countries. His crime? Pasting an anti-EU poster on the wall of a Belgian police station. The Belgian police in Brussels arrested Mr. Johansson, who is an active member of a legal Swedish left wing party, three days before the Laeken summit. The police expelled him for only one reason: he had been helping friends to put up a poster, announcing an anti-EU meeting. Mr. Johansson was not only expelled from Belgium, but will also not be able to travel in Germany, Austria, Spain, France, Greece, Italy, Luxembourg, Netherlands, Portugal, Island, Norway, Finland and Denmark – all members of the Schengen agreement. Moreover, this banning order has no date of expiration.
While pasting up posters in unauthorized places is considered to be a minor crime in most countries, especially Scandinavia, the Belgians however regard it as a quite serious offence – disturbing public order. A leading member of the Danish June Movement, Ms Drude Dahlerup described the incident as "horrible" and said there was a complete lack of proportion between the offence and the punishment. "I would like to invite Mr. Johansson to visit me in Denmark and test if this is something the responsible Danish authorities intend to obey," she said. Ms Dahlerup sees the case as a clear example of the loss of civil liberties that the current EU legislation is heading towards. Scandinavians have long enjoyed the freedom to travel without passports or border controls between their countries.
Reading reports such as the above is chilling, and perhaps we should not be so insouciant here in Canada if a report appearing in the National Post is to be believed. On December 28th, 2001, there appeared an article to the effect that the Liberal government of the best country in the world (at least until recently) was considering changes in the law. The changes being considered would allow search warrants issued by foreign countries to be executed in Canada without the permission of a Canadian judge being required. Allegedly this move is being considered because of the speed at which cyber-crime can be committed. This was defined as the use of technology to facilitate or cover up a broad range of criminal activity, from international money laundering to the sabotage of electronic systems.
Our Minister of Justice, Anne McLellan, was quoted as saying, "If you get a warrant in the U.S., obviously in virtually all cases you have to have that warrant re-issued before a judge or a [justice of the peace] in Canada. Well, if you're dealing with cyber crime, you have to ask yourself basic questions like, does that make any sense when, within a flick of a key, the information in your case may have disappeared?" Significantly, she added "The European Union is doing some interesting stuff. They are looking to going to a Europe-wide warrant for extradition. Obviously Canada and the U.S. have expressed interest in making sure that we are not disadvantaged by this new approach in the European Union." She did concede that the federal government will face privacy concerns if it is to broaden the power of authorities to investigate online activities. Her comment that the EU is "doing some interesting stuff" is frightening, as this bodes ill for all of us who would soon find our present rights effectively disabled.
A spokesperson for the frequently invisible Attorney General, Mr. MacAuley, was quoted as saying that "What began as a concern about telemarketing fraud, in which criminals target victims across international borders, has evolved into a more urgent concern about terrorists using computers to facilitate their crimes." He added, "Domestic measures themselves can't be the entire solution because of the nature of the technology and the fact that cyber-criminals, criminal organizations and even terrorists will try to exploit the legal differences between countries. Solutions have to be shared and put in place together."
While it has not yet actually happened I would not bet a lot of money that this Liberal government will refuse to seize such an opportunity to continue the process of removing another one of our cherished liberties. The temptation to "harmonize" our laws may well prove irresistible. The quotation from Douglass with which I began this piece ends thus: "The limits of tyrants are prescribed by the endurance of those whom they oppress." Sadly
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