By Mohamed Harees –
“Do not judge and you will never be mistaken” ~Jean Jacques Rousseau
Justice must not only be done, it must be seen to be done, if the legal system is to retain the trust of society. One of the key principles of natural justice in law is “Audi alteram partem”- i.e. nobody should be condemned unheard. The logical extension of this principle is that everybody should be provided with legal aid to defend himself or herself in the court of law so as to prove his/her innocence. The presumption of innocence on the other hand, is a right that is intended to apply across all countries and cultures in the world, as a basic human right. Derived from the nature of things and natural state of affairs, the presumption of innocence, in connection with human behaviour, permeates and directs the principle of legality of all criminal legislation, substantive or procedural. Closely linked with and based upon the “presumption of innocence” is the “burden of proof“. The burden of proof is on the State to prove its case, not on the accused to prove his innocence and certainly not for the accused to prove his guilt. The notion that a person accused of a crime must be found guilty ‘beyond reasonable doubt’ is what is known as the ‘burden of proof’.
It is rather unfortunate to note to what extent these sacrosanct legal maxims were being widely violated and ignored in public space, very often even in the so-called advanced West. Clear example was seen few days ago, when Kamer Nizamdeen, a young lad hailing from Sri Lanka, who till then, had a bright future ahead of him, saw all his future hopes dissipating without any trace, when he was taken in by the NSW Australia Police allegedly on terror charges for having in his possession, a so-called notebook with details of terror targets involving both prominent political personalities and locations down under. (Earlier I thought it was a Computer Notebook given his IT background; but it was said to be a paper notebook). Both his family and his friends, began reeling in rude shock, when the news about this arrest reached them, with misleading headlines being splashed across most dailies both local and international, feeling a sense of powerlessness against Media sensationalism at its’ worst. The unfair Press, with no concern to all these sensitivities, called Kamer various names and invented non-existent links, introducing incorrect and distorting headlines to add spice to the new-item, as they were hell-bent on selling their papers.
Social media warriors too, joined the bandwagon and started carelessly making innuendos in the public domain about Kamer’s ‘terror’ connections and began copying and pasting biased Western Media news items, unfairly prejudging Kamer Nizamdeen in the process, even before a fair and reasonable investigation is completed. It was also not surprising that few Sinhala online websites in Sri Lanka too, well known for its’ anti-Muslim hate started its’ usual hate mongering process and harped on ‘unsubstantiated ISIS connections’ to sling mud not only on Kamer but also on his uncle Minister Faizer Mustapha too. The hate posts in the social media began making both unfairly and incorrectly, sweeping statements suggesting that Minister has been using his official clout to bring pressure on the Aussie Govt. and sending lawyers from Sri Lanka, despite his clear interview to the Press recently that he will not be prejudging and will leave it to the Australian judicial system to take its’ course, although his family clearly believed that Kamer is innocent. Prejudice, they say, is a great time saver, where opinions are formed without having to get the facts. Some even suggested that Minister should be investigated too. Kamer has thus become guilty until proven innocent, a reversal of the above said classic American legal maxim, in the wider background of Islamophobia hate campaign working in full throttle both in the West and beyond where Islam is always the adjudged culprit.
It is not the intention of this article to prejudge Kamer and clear him in the opposite sense at this stage until the investigations are completed, as it is unfair too. It is best left to the judicial process to judge him. However, as a part of human rights, every accused person has protected rights under international law and also under Australian laws. The rights of the accused rest on the wider concept of human rights which is recognized by the different religions throughout history and developed through protracted struggle and strife culminating in their contemporary manifestation in universal declarations and international instruments of human rights as well as in national constitutions of states. From what is known up to now, Kamer is being condemned without being given the benefit of ‘audi alteram partem’ and also without any access to legal aid or family visits. In this light, it is unfair for the general public to make him guilty based on what the Police said the possible reason for the arrest (notebook) and the sensational journalism which was woven around it, until investigations are completed and Kamer given an opportunity to be fairly heard. In fact, Police has revealed that Kamer does not have any criminal or terror track records and does not appear to be a person who is capable of committing heinous crimes.
Kamer is known by the community for being an affectionate, open-minded, jovial person who enjoys the simple things in life, and values family and friends above all. As of now, both his family and friends both in Sri Lanka and Australia, as well as his professional contacts have vouched for his exemplary academic/ professional and personal conduct and character which puts much doubt in the minds of unbiased public about these charges of terrorism levelled against him. Based on his track records, many feel that young Kamer has been framed while many others think that the charges are trumped up. Prominent educationist and his former school Principal Goolbhai Goonesekera also gave Kamer a good character certificate questioning the very rationale behind branding Kamer a ‘radicalised youth’- a charge which the NSW Police say they are inquiring into. There is also a public petition, signed by few thousands going around in the social media, asking for speedy Justice for Kamer. Of course, it is prudent to leave the process of Justice to take its’ course, expecting fairness from those who inquire into these charges or sit in judgement over him. But he should be given all legal avenues to prove his innocence.
Besides, it is the height of injustice to this flamboyant youth that both the Media and many sections of the public has already made him a terrorist accomplice with connections to ISIS, referring to him as a lone wolf while also making innuendos of suspicious travel to terrorist prone destinations, when they refer to his travel to Sri Lanka and ‘many other places’, drawing war-torn areas in the ME in the minds of its’ readers. He has actually travelled only to the US apart from his motherland, to visit his extended family. Interestingly, ISIS has not come forward to ‘own him’ too either as they usually do, nor he has had any suspicious or terror past track records according to revelations from investigations to-date. In fact, many studies in the West, challenged the notions that terrorists are radicalised mainly online or that the process happens in one fell swoop. Many of the convicts confessed to having real-life terror-supporting networks, with whom they grew more radical over a period of years. So, it is very likely that a person with a credible personal profile of Kamer fits into the type of a person-profile, the investigators are charging him with. Thus, there is more to it than it meets the eye.
True! Australia, like most other western democracies, did commit itself to an apparently endless ‘war against terrorism’. However unfortunate development has been that this ‘war’ has taken the shape of a pseudo-religious crusade, not just in Australia, but even in Europe and US too. Ironically, Islamophobia has been playing a major part in their war against terror, making the whole exercise ‘a war of terror’ instead. Since September 11, 2001, great concerns for human rights have been voiced as the balance of normal criminal law application has been appallingly twisted. Interestingly, the Prevention of Terrorism Act (PTA) of 1978 in Sri Lanka also provided the police with broad powers to search, arrest, and detain suspects. It was first enacted as a temporary law in 1979 under J. R. Jayewardene presidency, then made permanent in 1982. The government has detained people under the PTA with a range of backgrounds and histories. Although the law was specifically intended to prevent terrorism, many people with no connection to terrorism or to groups such as the Liberation Tigers of Tamil Eelam have been arrested under its provisions. But most of those held without charge under the PTA were unknown to the outside world, generated no international outcry, and languished in prison for years. Therefore, those arrested under terror charges even with flimsy evidence, do suffer much injustice in the hands of the judicial process.
It is a fact of life that the allegations have to be taken seriously and must be investigated. But, as law allows, it is imperative that Kamer will be provided with all avenues to prove his innocence and get the justice he deserves without much delay; thus at the end of the correct procedures and investigations, to be cleared of any wrongdoing. For those of us –the public, we should at least be fair to Kamer and his family by not prejudging him and branding him with various names and allude terror links based on hearsay and Media sensationalism spreading anti-Muslim prejudice, as the matter is still under investigation. As the public petition demands, let Kamer be given a fair hearing without delay and also access to legal aid and family visits as he is entitled to. Social media should be used responsibly and carefully without adding fire of prejudice to a sensitive matter which has already destroyed peace within families, and which has the dangerous spark of creating more mistrust between communities. Besides, this is the least we could do to a promising young man who has achieved much in his field , whose promising life has already been prematurely ruined in many ways.
Whenever a law is laid down publicly, no matter by whom and for what because, it always comes with a sense of fairness. The notion of law is inherently fair in the sense that it could provide a basis for social fairness, but real life legal systems would always entail some unfair practices. Then the question left is how to make a real life legal system fairer? Unfortunately, there seems no simple universal solution for this question. However, people around the world have never stopped demanding the fairness of law in the past and they would certainly not do so in the future. This demand of fairness of law by the general public is one of the most meaningful forces for the improvement of fairness of legal systems around the world. As long as the general public would keep the fairness of law as a demand, efforts would be made through academic studies and education, resource allocation, and legislative actions to make the legal system around the world fairer and fairer. Hence the need to keep public pressure on, to demand Justice for Kamer. It may be Kamer today; it may also be our own son or daughter tomorrow who may feel similarly aggrieved due to unfairness of the law and the social environment around them; including an unfair Media whose brutal reach permeates into our families too. It is also apt to remember that judging a person does not define who they are, it defines who we are.