Foreigners and the Right to Justice in the Aftermath of 9/11

Abstract

Whether foreigner or citizen, as whether innocent or guilty, we are all worthy of being accorded justice when our fundamental rights are at stake. Working with international law and, where available, constitutional guarantees, tribunals in Canada and elsewhere will have to continue to push for the ultimate pre-eminence of human rights and freedoms over the interests of the State, especially in troubled times such as these. The protection of Canada, of its sovereignty, of its borders, cannot legitimately be based on the negation of the rights and freedoms of foreigners: ultimately, they are not different from the rights and freedoms of the citizen. It took us a long time to understand that fighting organized crime could not legitimately be achieved at the cost of the rights of the accused and many a criminal has been set free because of obscure procedural errors. Fighting terrorism is an essential social, political and legal objective, but not at any cost. Certainly it should not be pursued at the cost of anyone's fundamental rights and freedoms, as these are the benchmarks of a civilization based on the pre-eminence of human dignity.

Foreigners slowly gained in recent decades what criminals obtained in previous centuries, that is recognition that their human rights will prevail over their host State's interest. Challenging those gains is a blow to the whole of the human rights construct: if the rights of foreigners can be reduced today, why not the rights of the beneficiaries of social benefits tomorrow, when a government will declare that such a move is in the State's interest‘ This blow to fundamental rights and freedoms is a negation of the common humanity of all human beings, including foreigners. It entails a negation of their individuality, a refusal to hear their individual story, a refusal to understand their particular plight. This course of action can have disastrous consequences for the life and health of foreigners who are thus targeted.

The absolute prohibition of torture, without exception, is one of the most fundamental legacies of the generation that lived through the Second World War and the Shoah. Yet, when the cover of The Economist of January 11, 2003, asks the question: “Is torture ever justified‘”, one understands how tempting it is to disregard the rights and freedoms of terrorists (who are necessarily imagined as foreigners) in the very name of freedom. “O Liberté! Que de crimes on commet en ton nom”, said Madame Rolland on the scaffold in 1794. Jurists and citizens should be extremely vigilant not to let their governments decide which category of persons is worthy of justice: the human rights regime is, after all, a common good that we all share for our common benefit.