No asylum for deserters
THE LAW
R. A. CLINE It is a time-honoured, principle of the English law of extradition that a fugitive criminal must not be surrendered if the offence for Which he is wanted in his home state is one of a political character. So if an American in London is wanted for a burglary in New York, he will be extradited. If he is wanted for anti-American activities of a political kind, he is given asylum.
No doubt there are those who regret that England, already over-occupied, should extend its protection to political agitators who are a nuisance to their host country as they are an irritant to their home country. Such regrets are ill-founded. The enormous trouble, care and expense incurred in 1963 in considering whether Enaharo should be extradited to Nigeria, involving a lengthy trial and accusa- tions against an English law officer, were an important manifestation of the common law and its capacity for impartial protection.
Last week's case of the American army de- serter who was sent back to America to be tried for his offence came as a shock to the common- law believers. The deserter in question was not a member of the visiting forces in England. He had deserted in America and was wanted there for trial. He contended that he had deserted because he was opposed to the Viet- nam war and fled to England, where perhaps he expected political asylum.
Whether he was genuinely opposed or not is apparently immaterial. Nor does it matter whether his grounds if genuinely held ren- dered the offence 'of a political character.' For it turns out that in 1952 a section of the Visit- ing Forces Act (which in this respect has nothing to do with visiting forces) was passed which almost by stealth cut across the prin- ciple of political asylum. If you are a member of the armed forces of certain friendly countries, you will be denied the shelter accorded to non-military offenders and sent packing to the place of your offence for trial.
There is no reason why this country should become the haven of army delinquents; but there is equally no reason why genuine seekers of political asylum should be victimised be- cause they are in uniform. Did anyone who voted for the 1952 Act with its deceptive title have the slightest notion that a basic consti- tutional principle was being infringed?
When the tumult dies down and both the House of Lords and the sanctions Order in Council have been permitted political survival, a legal contest may be looming up which will test the validity of the Order. The Rhodesian press has recently been showing a lively interest in a proposal to challenge the order before the Privy Council in London. It is said that there has been much intensive activity behind the scenes, especially in the tobacco industry, which may result in pro- ceedings being started for this purpose.
The how and who and when of the affair is a matter for conjecture, but a little of the veil has been lifted. It is apparently being said that an application will be made direct to the
Privy Council for a report as to the validity of the sanctions. Needless to say, the Smith regime itself could not be and does not intend to be a party to such proceedings. In the Madzimbamuto appeal now being heard in Downing Street (where the Judicial Committee of the Privy Council, composed largely of Law Lords, has its hearings) there is no represen- tative from the regime present to argue the case against the detainee; a so-called 'amicus curiae' appointed by the Treasury is there, so that the detainee's South African counsel may have some opposition. The legal route from Salisbury to London has been cut off by the Rhodesian Court of Appeal who refused the detainee leave to appeal here.
But the proposed test action stands in a very different situation. What seems to be con- templated by the Rhodesian traders is a refer- ence to the Privy Council without any previous proceedings whatsoever in Rhodesia. Thus there would be no question of an appeal to London since there will have been no judicial decision in Salisbury to appeal from. The pro- ceedings before the Judicial Committee would be part of their so-called `original' jurisdiction in contrast to their appellate jurisdiction.
If such a reference takes place, it seems that the attack on the sanctions order will proceed on the basis that under the 1961 Constitution— the constitution which in the eyes of the British government is the only legitimate one—the home government shed a large number of its powers and responsibilities, particularly those relating to trade, by handing them to the Rhodesian government. The contention will be that the British government cannot point to any of its reserved powers to justify the Order in Council and it is therefore illegal.
Precisely how the case will be argued is necessarily a matter of speculation. In any case the writer may, if he developed the argu- ment in detail, be convicted of supporting or giving comfort to the regime, and suffer the removal of his passport (subject to an appeal to Mr Justice Cairns which may be overridden by the Secretary of State).
It will certainly not be the first time that the reference procedure has been used in this way, though it has become somewhat rare. By a curious irony it was invoked in a battle between the British South Africa Company and South- ern Rhodesia in 1918 when the Privy Council was asked to invalidate a Rhodesian resolution with regard to land title. But this would not be the only irony. The sanctions order itself was made 'in Council,' by the Privy Council. So the judicial branch of that ancient body would be asked to invalidate the acts of the legislative branch.
However, there is one difficulty which may prove insuperable. Challenges of this kind can be made only by a reference from the Queen by, of all things, an Order in Council. Thus the circle is complete. If the Rhodesians are to mount such proceedings, they will first have to obtain the Government's support for an Order referring the sanctions Order to the Privy Council for its decision—which seems unlikely, to say the least. Perhaps lawyers in Rhodesia are studying other ways and means. They will not have forgotten that the Kabaka of Uganda was restored to his throne by a brilliant legal device embodied in a test action fought out in the law courts. But one must be careful . . . any further analysis might give support or comfort to the regime.
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