Detention and terror

The proceedings against an Indian doctor for alleged links with the U.K. terror plots spark a public debate in Australia.

P.S. SURYANARAYANA in Singapore

AUSTRALIAS swoop on Brisbane-based Indian doctor Mohammed Haneef and his pre-trial detention in a solitary cell as a terror prisoner have attracted international attention. Leaders of civil rights groups and associations of lawyers in Australia have positioned themselves at the front lines of a unique public debate.

In prime focus is the alleged unjust implementation of Australias new counter-terror legislation and old immigration laws. More specifically, numerous questions have been raised about the manner in which a man who has been granted bail is being imprisoned without the civilised right to be presumed innocent unless and until proven guilty. Denying that he had done anything wrong, he had filed a not-guilty plea before seeking bail. Conditional bail was granted because of the exceptional circumstances that warranted it.

As of July 25, Haneef was awaiting an Australian Federal Court hearing in Brisbane on August 8 over his appeal against the revocation of his work visa. Again, on August 31, there is a committal hearing in the Magistrates Court in Brisbane over some charges linking him to at least two suspects, both his distant cousins, in the recent terror plots in the United Kingdom.

When Haneef was taken into custody, as opposed to a formal arrest, at the Brisbane airport on July 2, he was about to board a flight to India in order to visit his family in Bangalore. For several months before that, he had worked honourably as a registrar at a hospital on the Gold Coast in Australias Queensland State. It was in 2006 that he moved to Queensland from the U.K., where, too, he was working as a medical professional.

What followed Haneefs arrest in all but name was an intensive 12-hour interrogation, with some pauses for natural and official reasons. He was quizzed over his suspected connections with his cousins in the context of the failed terror plots in London and Glasgow in late June. As the case took dramatic turns, one of Haneefs lawyers, Stephen Keim, made the extraordinary move of leaking the full transcript of this police interview to a major Australian daily on July 18.

After the publication of the leaked transcript, lawyers and civil liberties activists intensified their campaign for natural justice in this case the first real test of Australias counter-terror laws. Serious discrepancies between the published version and the claims by the Australian Federal Police (AFP) have served as the main points in support of the pleas that Haneef be treated in a fair and just manner. In fact, these discrepancies, as also some reports from the U.K. and the perceived inconsistencies in the stand being taken by the AFP and the federal Director of Prosecutions, have generated a new demand.

At the time this is written, suggestions have emerged from civil rights groups that the accused should actually be set free without being subjected to the legal process any further. Asked about this demand, Australian Prime Minister John Howard maintained, on July 24, that it was not for him to say whether Haneef should be released unconditionally. Howard took the line that the case should be investigated by the police and the prosecutors.

A complicating factor in the case is the legal impact of an unprecedented intervention by Immigration and Citizenship Minister Kevin Andrews soon after Haneef was granted conditional bail on July 16. Andrews exercised his discretionary powers under the Migration Act and cancelled Haneefs work visa on the grounds that he fails the character test. Andrews said he had reasons to suspect that Dr. Haneef has had, or has, an association with persons involved in criminal conduct, namely terrorism.

Andrews intervention nullified the conditional bail granted by Magistrate Jacqui Payne. Noting that Haneef was not directly implicated in the recent terror plots in the U.K., Jacqui Payne pointed out that no charge was also brought against the accused to indicate that his mobile phone smart card (Subscriber Identity Module, or SIM card) was indeed used to carry out a terrorist offence.

Australian prosecutors had submitted that Haneef gave his SIM card to his cousin Sabeel Ahmed in the U.K. before leaving that country last year. It was argued that this SIM card was linked to the terror plots. Cited, more specifically, was the failed attempt by Haneefs other distant cousin, Kafeel Ahmed, to blow up the Glasgow airport building by ramming into it a flaming jeep, apparently laden with explosives or inflammable material. Kafeel Ahmed sustained life-threatening burn injuries in that attack and stands accused of the plot. On the basis of these submissions, the Australian authorities alleged that Haneef provided material support to a terrorist organisation, whose name, of course, remained unstated.

Shortly after Haneef was so charged in court on July 14, AFP Commissioner Mick Keelty said the specific allegation against the accused was his recklessness rather than intent in supporting terrorism. And, at that time, this police take on the case was in harmony with the observations that the woman magistrate made while granting Haneef conditional bail.

Jacqui Payne took note of Haneefs career graph and his unblemished record, as seen from a criminal law perspective. However, given the seriousness of the first-ever charges against him, she ordered that his bail would be subject to his compliance with strict reporting conditions and police surveillance. He was also ordered to keep away from places of departure for any international destination and to observe other norms of good behaviour. A surety of 10,000 Australian dollars was required, too, for freeing him on bail in those circumstances.

Even as Haneefs lawyers, led by Peter Russo, and others began mobilising this amount for posting bail, Andrews imposed a fresh detention order on the doctor. The legal implication of Andrews executive fiat was that Haneef, if and when physically freed on bail, would be instantly retaken into custody, this time for being lodged at an Immigration Detention Centre in Sydney.

Seeing Andrews action as a political sleight of hand, Haneefs lawyers soft-pedalled their bid to post bail and filed a petition before the Federal Court in Brisbane. And shortly before the court set August 8 for a hearing on the petition, the AFP and prosecutors took steps to transfer Haneef from police custody at the Brisbane Watch-House to the Wolston Prison, elsewhere in Queensland.

With that, Haneefs status changed from that of a man freed on bail in exceptional circumstances in a terrorism-related case to that of an extraordinary pre-trial terror prisoner in a solitary cell.

It is against this complex background that Haneefs final status in this case will be determined. If his appeal against the abrogation of his work visa is judicially upheld, his conditional bail will get reactivated, upon the surety amount being suitably deposited. However, this line of reasoning based on natural justice, is not without challenge.

Upon the announcement of Andrews fiat, an action that required an immediate deportation of Haneef, the Australian authorities were also instructed to issue a Criminal Justice Certificate. This would, it was stated, permit the authorities to keep Haneef in fresh detention. The move was quickly translated into his solitary confinement, pending the full course of the legal proceedings initiated on his behalf and against him. However, rarely, if at all, was the work visa of a foreign national revoked before the person was proven guilty of an offence.

So, some Australian pundits began looking for an exit strategy so that the authorities could avoid a possible legal trap in an uncharted domain. Of particular concern to the authorities is the possibility of a judicial revival of Haneefs work visa. It was in this particular context that a new idea gained some currency in Australian political circles that the relevant Criminal Justice Certificate be revoked and Haneef be deported before the court hearings on his appeal in the work visa case and the committal hearing on terrorism-related charges against him. As of writing, though, there was no official decision, one way or another, on this possible exit strategy.

Why did such a strategy become a talking point at all? Legal, political and diplomatic reasons account for this unusual situation.

On the legal front, lawyers and civil society groups began to articulate arguments, in the public domain, to suggest that the terror-related charges against Haneef were almost untenable. In the early stages of this case, Attorney-General Philip Ruddock made much of Haneefs apparent intent to leave Australia by seeking to fly out to Bangalore on a one-way ticket. Later, experts said his contention about his financial circumstances should suffice. A factor cited as being relevant to this reasoning was his willingness to cooperate with the investigators in both Australia and the U.K.

More importantly, opinion-makers started highlighting the perceived defects in the prosecutions argument that Haneefs SIM card was the centrepiece in the terror-related case against him. The counterpoint, projected by these analysts, was simple but profound. It was emphasised that the U.K. authorities themselves had never really claimed that the SIM card, which Haneef gave Sabeel Ahmed almost a year ago, was of material significance to the relevant terror plots.

Another point cited in favour of the Indian doctor was that the AFP had tried to falsify his diary by inserting in it the name and contact details of Kafeel Ahmed. On this, Keelty was quick to assert, on July 23, that the police at no time made any notations [in] or additions to Dr. Haneefs diary. Yet, the civil rights lobby was insistent that he deserved a fair deal, as there was no explicit charge in the public domain to brand him as a conspirator in the relevant U.K. terror plots. A point underlined in this regard was that Haneef, contrary to the AFPs suspicions, did not acknowledge having ever lived with the U.K.-based suspects.

One more crucial pre-trial argument centred on whether Haneef was accused of plotting a terror strike in Australia itself. An Australian media report claimed that the AFP was investigating him for having taken photographs of some landmark buildings in Queensland with an eye for detail. With Keelty losing no time to dismiss this media report as inaccurate, Haneefs supporters reckoned that his position in the legal arena might have got strengthened.

On the political front, it was this media report on July 22 that drew out Queensland Premier Peter Beattie, who belongs to the Australian Labour Party that sits in the Opposition at the federal level. Beattie asserted that the federal authorities had, in their briefings to him on the Haneef case, made no mention of any threat to any individual or property in Queensland.

Later, calling on the federal government to come clean about all these inconsistencies that were being aired in the public domain regarding the AFPs handling of the Haneef case, Beattie wanted a Senate inquiry at the national level. Howard refused, arguing that the case hasnt been properly heard yet by the courts. The political row over the Haneef case was heating up in Australia at the time of writing.

On the diplomatic front, the U.K. made no known request for the extradition of Haneef from Australia. In fact, there was barely any mention of Haneef in the charge sheets filed in the UK.

India has evinced a proactive interest in the Haneef case, with New Delhi expressing concern about some aspects of it. Australian Foreign Minister Alexander Downer telephoned his Indian counterpart Pranab Mukherjee. Later, in comments made available to this correspondent, Downer said that Indians are naturally concerned just as Australians would be in similar circumstances involving them in India. At one stage, Indias High Commissioner to Australia P.P. Shukla said New Delhi was hoping that Canberra will be able to share what seemed to be some additional information regarding the accusations against Dr. Haneef. Downer indicated that Canberra would keep New Delhi informed. However, there was no categorical indication that Canberra would engage New Delhi deeply by going beyond the sharing of information.

On the personal front, Haneef had a welcome visitor at the Wolston Prison on July 24. Imran Siddiqui, a close relative of his wife, met him to convey the familys support for him. During the emotional meeting, Siddiqui showed Haneef some photographs of the latters infant daughter who was born shortly before he was to leave Brisbane on July 2.

With the Haneef case being played out in the legal, political, diplomatic and family fronts, the Australian authorities, by July 25, found themselves with the challenge of proving that they would not follow in the footsteps of the United States on a key aspect. An Australian daily portrayed some aspects of Haneefs detention as a detention of democracy itself.

The public debate in Australia was replete with disapproving references to the U.S way of treating terror-suspects at Guantanamo Bay. The Australian authorities hinted they would rise above the Guantanamo Bay syndrome. They frequently pledged to uphold the principle of presumption of innocence as applicable to the Haneef case.