February 26, 2006

Letters to the Editor
The Globe and Mail

Marvin Kurz contends (The rights of terrorists? What rights? Feb. 25) that terrorists should not have any rights. This ignores some important issues:

1. The Universal Declaration of Human Rights as well as the Hague and Geneva Conventions do not state that they only apply to people we agree with and those who respect our laws.

2. None of the human rights advocates — including Prof. Phillip Alston, whom Kurz mentions — argue for special treatment for terrorists. They only assert that we must abide by the rule of law and respect established procedural safeguards and fundamental rights.

3. Terrorism is nothing new. Nations have been dealing with the scourge for decades and there is no need to undo many of the developments in the field of international human rights law.

4. Who and what process determines that someone is a terrorist not entitled to any safeguards? This is particularly problematic given the dozens of definitions for terrorism.

5. Exploiting emotions by asking such questions as what about the rights of the victims? is intellectually dishonest. Limiting or taking away rights from the suspected or even accused does not in any way increase the rights of victims.

The inherent challenge for any democracy engaged in the struggle against terrorism is always the reconciliation of rights, liberties and the rule of law with an effective and unequivocal counter-terrorism policy. If we give up our core values and ideals then we are no different from the terrorists. At the same time, we should also not be naïve to think that terrorists are not constantly on the lookout to exploit weaknesses. “The Constitution is not a suicide pact,” remarked American Supreme Court Justice Arthur Goldberg in a widely quoted ruling from 1963 (Kennedy v. Mendoza-Martinez, 372 US 144, online http://laws.findlaw.com/us/372/144.html). In essence, a liberal democracy should not be digging its own grave by being constrained in its ability to deal with those out to destroy its very existence.

Yet, as Justice Goldberg emphasized in the same decision, it is precisely during times of crisis and war that the protection of fundamental rights must stand the test.

Yours truly,

Faisal Kutty
Baksh & Kutty
Barristers, Solicitors & Notaries
80 Corporate Drive, Suite 302
Toronto, Ontario
M1H 3G5

Tags: Democracy, Human Rights, Rule of Law, Terrorists

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