Locked away: Julian Assange case has lessons for Subrata Roy
Whistle-blowers are part of democratic governance - to be protected, not persecuted.
One of the greatest whistle-blowers of our time is Julian Assange. The United Nations Working Group on Arbitrary Detention (Working Group) held that the "deprivation of liberty of Mr Assange" is contrary to the Covenant on Civil and Political Rights, ie ("CPR") and the Universal Declaration of Human Rights 1948.
The case is not one of simple detention but constructive detention. Assange cannot leave the Ecuador embassy in London. The moment he steps out he will be arrested, sent to Sweden for an alleged sex crime for which he has not been charged in nine years, without even an extradition request. The US wants him for WikiLeaks which told the world how the US and its war machine work.
"Poodle" allies
It is the US that orchestrates its "poodle" allies - Australia, Britain and Sweden - to protest the UN decision as rubbish and ridiculous; and keep the heat on Assange alive in London. Recall the sentence in 2015 of Chelsea Manning (a man who claims to be a woman in spirit) for 35 years with possible parole in eight years for leaked documents to Assange's WikiLeaks.
What awaits Assange is worse. His leaked information on Afghanistan and Iraq includes US soldiers wantonly killing civilians from a chopper.
Born in 1971, Assange had a "nomadic" childhood: Despite an incomplete education without a degree at Melbourne University, he became a hacker par excellence, establishing WikiLeaks in 2006. He got awards galore for journalism; and even a gold medal for peace, awarded earlier to Nelson Mandela, Dalai Lama and spiritualist Daisaku Ikeda. The downside was three sexual molestation charges in Sweden which are time-barred, but there is a rape case which is alive till 2020. On its part Sweden issued an international arrest warrant but only an order of the Swedish court requiring his questioning without initiating extradition. Assange believes he can absolve himself. But the larger conspiracy is to get him to the America which has put him on a man-hunting time line, asking other countries to criminally investigate him.
Legally the question is: Why does this come under the Working Group's jurisdiction? Clearly, it is not incarceration as normally understood. Assange was detained in Wandsworth prison from December 7, 2010 (including ten days in isolation) and 550 days under house arrest. Seeking asylum from the Republic of Ecuador in London, he was granted "diplomatic" (not political) asylum on August 16, 2012. He has remained in that embassy ever since.
Security
Who wants what? Britain has spent over £12.5 million on security round the Ecuador embassy from 2010-15, but will arrest him if he steps out. In 2012, Sweden permitted only extradition for questioning in Sweden. But all this is part of a chain to get him to America and imprison him for the rest of his life. In this amazing stand-off, Assange is under incarcerated asylum in the embassy.
The Working Group is a highly respected body which monitors detentions throughout the world. Its decisions have been honoured. The Human Rights Committee in its General Comment 35 on Article 9 of the CPR states: "An arrest or detention may be authorised by domestic law and nonetheless be arbitrary... interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law as well as elements of reasonableness, necessity and proportionality."
Confinement
The uncertainty was not just the confinement in the Ecuador embassy in England but also the Swedish demand for a preliminary investigation and further extradition to America.
In Deliberation No 9, the Working Group clarified all terms of arbitrary detention including constant surveillance were arbitrary even if authorised by law. It invoked England's Supreme Court's decision in the Bank Mellat case on applying proportionality to human rights and personal freedoms. The Working Group found a deprivation of Assange's liberty with a direction to Sweden and Britain to ensure his safety and freedom of movement and let him enforce his right to compensation.
The response of Britain, Sweden, Australia and America decrying the decision is hypocrisy. Can you keep a person in de facto confinement for almost six years which is, itself, a punishment? Historically, Sheikh Abdullah house arrest for 20 years without law is a blot on India's post-Independence history. He was not convicted of anything. Continued denial of bail in India is another example. No less Sahara's Subrata Roy is in jail for almost two years. Under the Contempt of Courts Act 1971, the maximum punishment for contempt is six months imprisonment or Rs 2,000 or both.
The Supreme Court invoked some hidden power to incarcerate him indefinitely until he pays Rs 5,000 crore and Rs 5,000 crore bank guarantee which is difficult to arrange from inside Tihar. The Sahara case is as arbitrary as they come.
Sahara should approach the UN Working Group. The government of India should have the guts to tell the Supreme Court that its order is disproportionate and against both international and constitutional law precepts.
(Courtesy of Mail Today.)