Governments must protect their citizens but not at the expense of their rights

Governments must protect their citizens but not at the expense of their rights

October 23, 2014

Terrorism is an affront to our freedom, human dignity and right to life. States, like New Zealand, have a legal and moral obligation to protect their citizens from terrorism and its impacts, and to address and eradicate both terrorism and its causes.   

States, like New Zealand, also have a legal and moral obligation to protect their citizen’s fundamental freedoms and human rights. To give away too easily hard won freedoms and rights because terrorists have scared us is a win for terror.

Our Parliament and Executive face a difficult balancing act in protecting our right to life as well as our other freedoms and rights.

History teaches us that the greatest threat to our life and liberty are people who are too sure they are right and others wrong. At their worst these people define the other as a lesser human to justify killing them.

These people are the terrorists, the fascists, the totalitarians.

The challenge for democracies like ours is to defend ourselves against these people without restricting our freedoms and rights so much that we hand these people a victory without a fight.

There are people like this out there, including ICIS. Short term proportionate limits on our freedoms and rights can be justified for the time the threat is serious.

We need to know what the threat is and what short term and proportionate responses are proposed before we can make any judgement.

New Zealanders are people whose forbears have paid the highest price for our freedoms and our rights. We have not shirked our responsibility to defend our democracy, freedoms and human rights. Most notably we defended these things in World War 2.  We should not give up these hard-won things easily.

Democracies have a particular responsibility to protect fundamental freedoms of belief, expression, association, property and privacy rights. This is mainly because few countries have historically protected these rights and many have little interest in protecting these freedoms anyway.

What is less obvious is how fundamental these rights are to innovation, enterprise and business.  Without freedom of belief, there would be no science.

Without freedom of speech and association, there would be little innovation.

Without property and privacy rights it would not be possible for innovators to earn a return on their innovation.  We think of these rights as political and civil rights, however, they also underpin our industrial and digital revolutions.

So are democracies capable of defending freedom and democracy from terror while remaining free and democratic?  United States Supreme Court Justice Brennan summed the reality as he saw it:

“…here is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to national security … After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along.”

If we unreasonably fear terrorism then who is to blame?

The reality is that we are all to blame, cowering in fear and expecting our government to protect us no matter what the cost.

My Uncle William taught me this. He experienced the human costs of terror first hand leading the biggest accident and emergency unit in Northern Ireland from 1967 to 1987.

When I visited him in 1985 I asked if there were places in Belfast I shouldn’t go.

He looked at me very sternly and said “You’ve more chance of being killed by a car, bomb or bullet in London than you have of being killed in Belfast by any of those things.

Do not let them own you.” To drive home the point he drove me straight into one of the areas most affected by the troubles.

There were no bombings in Belfast when I was there but a few weeks later the Rainbow Warrior was bombed in Auckland. The bombers were members of our allies secret services not terrorists.

New Zealanders should never forget all the lessons around the world, even in democratic countries, about how intelligence services will behave if not subject to proper authorisation and oversight processes.

Are we in danger of letting a fear of terrorists own us? We may be. Let’s look at some of the statistics.

We have had one person in 1985 killed by the secret services of another nation and no terrorist-related deaths since. In that time hundreds of women have been killed by their partners.

We are not hearing suggestions of mass surveillance of men or special laws for men who are in relationships with women despite the fact that many women have been killed in just such relationships.

I am not suggesting we should. I am saying let’s be realistic about where the harm is being done and let’s let our be reactions be relative to the realities of the risks faced.

If we are prepared to give up hard won freedoms and rights in the name of security because “where previously the threat of a terrorist attack was assessed as unlikely, it is now assessed as possible but not expected” why don’t we put CCTV cameras into every room of every house where a woman is in fear of intimate partner violence.

There is risk in being free. That is the whole point of being free. If we expect the Government to keep us completely safe we will never be free.

So the first message New Zealanders need to give all of our politicians is that we care about our fundamental freedoms and human rights.

The terms of reference for the Foreign Terrorists Review says regard will be had to these freedoms and rights  and that is a good step.

There have been other good steps taken recently by New Zealand in supporting United Nations resolutions on counter-terrorism and privacy rights in the digital age.

The current proposals seem to have their genesis in a recent and important United Nations Security Council resolution calling on nations to restrict travel of their citizens to places like Syria. This is relates to what are called ”foreign terrorist fighters’’.

It may be that the Government has determined New Zealand’s current law relating to passports does not enable the Government to do what it thought it could.

There may be some justification for restrictions. We need to see the case and know that the proposed response is short term and proportionate.

There is reason for hope in the terms of reference in the fact that the Government is saying the law will have a sunset clause related to the statutory review of intelligence services that is due to commence next year.

We also need to stop the political point scoring.

All mainstream political parties in New Zealand are committed to democracy, freedom and human rights.

There is a serious human rights issue that the Government is concerned about here.

They have an obligation to get the balance right.

Freedom and human rights are not the property of the left or the right of New Zealand politics: these freedoms and rights belong to all New Zealanders.

One of the best indicators we will have that the balance is right will be consensus amongst political parties that the balance is right.

Chief Commissioner David Rutherford

David Rutherford was appointed Chief Human Rights Commissioner on September 2011. Prior to his appointment, he was the managing director of Special Olympics Asia Pacific and based in Singapore. 

He has held senior executive roles in building materials and agribusiness businesses operating in New Zealand and Australia, has been chief executive of the New Zealand Rugby Union and has worked as a corporate, securities and commercial lawyer in New Zealand and Canada. 

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