Habeas Corpus for the Commonwealth?

By EDWARD GARDNER, MP

Auncounted multitude of political prisoners are now in prison and no one can say when, if ever, they will be released or brought to trial.

Hundreds of them are today in prisons of Com- monwealth countries, including Ghana and

Malaysia. Recent letters in the Spectator have shown a growing unease about the fate of the political prisoner in Singapore, but there are thousands more in other countries and their plight has failed to touch any public nerve of in-

dignation. It is the future of all political prisoners that ought to concern us and not just the fate of those in one particular place. We ought to be raising hell about all of these, prisoners. Until we do, those wonderfully wide and uplifting words 'freedom' and 'liberty' can mean no more than they did in Nazi Germany and Fascist Italy, or do in Russia, China or Spain. The problem of helping the political prisoner in a foreign country is formidable and for the moment appears to have no immediate solution. But the same problem in former British colonies, now members of the Commonwealth, should not be so intractable.

In this country we are so sure of our liberty that we take it, like democracy, for granted. We forget that the writ of habeas corpus, which protects our freedom, does not run universally, and is effective in sadly diminishing areas. English common and statute law combined make the writ of habeas corpus a more certain guaran- tee of personal liberty than any safeguard ever written into a constitution. The writ is available at all times for issue out of the High Court of Justice to secure the early trial or immediate release of a prisoner. The solution to the problem of political imprisonment without trial may well lie first in a writ of habeas corpus overriding local legislation and issuing through a Supreme Court of the Commonwealth to all Common- wealth countries submitting to its jurisdiction. Eventually, with the help of the UN, some form. of world habeas corpus may become possible.

The right to issue and enforce the writ of habeas corpus is enjoyed by British possessions whose law is based on English common law. The right was extended by special decree to other countries like Ceylon and British Guiana, whose law is based on foreign codes.

Before independence the, local courts of our former colonies could freely issue the writ. Today many governments of these former colonies, by repressive and despotic legislation, stifle or cir- cumvent the right and so strip their subjects of their protection against arbitrary power.

In Ghana, under the Preventive Detention Act, 11958, at least 400 people have been detained in prison without trial. In Singapore 130 politi- cal and trade union leaders were detained in February, 1963, under the Singapore Preserva- tion of Public Security Ordinance, 1956. Today approximately the same number are in prison and about one-third of the members of the opposition elected in September, 1963, to the Assembly are either in prison without trial or are hiding on the island. Can the indefinite de- tention of these prisoners be justified? Is it really essential in the national interest?

Inevitably, the answers, not all of them con- vincing, come from the governments involved. But where personal liberty is at issue a govern- ment can be the worst judge in its own cause; the need for an impartial, judicial and supreme apellate tribunal is then overwhelming. As long ago as 1960 Senator Coovay (Ceylon), at the Conference of Commonwealth Prime Ministers, suggested that the Judicial Committee of the Privy Council should be reformed and reconstituted into a Commonwealth Court. The judges would be drawn from the judiciary of the Commonwealth and would sit when and where necessary. In the same year, Lord Denning asked • the House of Lords, 'Why should not the Judicial Committee of the Privy Council go on circuit?' The judges of England, he said, rode round the circuits arid took more time than it now takes to fly to any part of the world.

'Cannot we look forward to a Commonwealth consolidated . . . by a Commonwealth Court in which all could have confidence?' he asked. Once such a court existed, then it could be vested with the discretionary power to issue where necessary a writ of habeas corpus overriding domestic legislation. The chief obstacle to the grant of this power would naturally be the independence of Commonwealth countries. But on questions touching the fundamentals of justice such con- siderations should be no handicap. For it is not only personal liberty, but the good name of the Commonwealth itself that is now in danger. If the conscience of the Commonwealth can be agitated into action by apartheid, can it remain unmoved by the indefinite imprisonment of its citizens without trial?

The problem of whether a measure of deten- tion was, in fact, justified by prevailing circum- stances would, of course, remain. Even in Britain the right to the writ has been interrupted in times of national danger. In 1794, during the war against the French Revolution, it was sus- pended. In 1914 and 1939 it was circumvented by the Defence of the Realm Act and the Emer- gency Powers Act respectively. But each time the effect of the special legislation came to an end with the emergency that evoked it.

Clearly a Commonwealth Court would have to decide whether emergency legislation was being used to protect the country against a foreign enemy, or to protect the government against a domestic opposition. Had the emergency powers of 1794, 1914 and 1939 been used in the way that emergency legislation is being used in some Commonwealth countries today, then Pitt could have imprisoned Fox, Asquith could have in- terned Ramsay MacDonald and Chamberlain could have sent Attlee to the Isle of Man.

The absence of any effective appeal against such a misuse of power, the removal by inde- pendence of the overriding authority of Par- liament and Westminster and the consequent restriction on parliamentary investigation, all support the urgent need for a Commonwealth Court. Questions about political prisoners can be asked in Parliament only if Britain remains responsible for the internal security of the coun- try concerned, as in Aden. The same questions are out of order if they relate to places like Singapore and Ghana where we have shed this responsibility.

Great ambitions are achieved by small suc- cesses and the setting-up of a Commonwealth Court would give some hope to the ultimate pros- pect of a world habeas corpus inspired by the

example of a Commonwealth writ. Indeed a world writ issuing through an international court

with the overriding authority of the United Nations could make the words of the UN Charter mean what they say.