What price liberty?

“Innocent until proven guilty” is a phrase we have heard a lot about lately. But one might fairly ask “by what standard of evidence must guilt be proven and to whom?” Thanks to television we are all familiar with the legal technicalities by which a killer or pedophile may “walk” because this or that evidence was excluded in court. While civil libertarians will defend the process, victims of crime are outraged, often supported by the media and the public, and therein lies the moral dilemma.

If the meanest member of society cannot be guaranteed the full protection of the law then none of us can. But is it not also a duty of government to protect society at all costs? If the price of liberty is eternal vigilance, should society be denied the protection afforded by the intelligence such vigilance reveals, merely because clandestine means were employed. Put more bluntly should the known terrorist walk to claim more victims because compelling proof of guilt is inadmissible under the law of evidence or have we reached a time when the defence of society, cannot be denied?

I personally confronted that dilemma almost 40 years ago, when terrorism ripped the fabric of Hong Kong society apart. For several months, literally dozens of bombs a night, were placed strategically on rail and tram lines, and bus, train and ferry stations in a ruthless campaign of terror intended to bring the colony to a stand still. Several were killed, many more were maimed or injured. It stopped only when the British government turned its back on the rights of the individual and put protection of society above the law. Eighty three of the colony’s leading communists, identified as terrorists, were rounded up, abducted if you will, and incarcerated without trial. They were held for three years and then, without a single charge being laid, they walked free. They remained “persons of interest”.

Mounting casualties pressured the government to make their decision. In one crucial week, an army sergeant was blown from a cliff face when a bomb placed over a railway tunnel exploded. One of my colleagues was ripped apart while dismantling another bomb on a tram line, both an arm and a leg were blown metres from his bleeding torso. A few days later at almost the same spot, two children discovered a shoe box bomb. Police scraped some of their remains from the wall of an alley in Wanchai. Casualties mounted week by week. Earlier in the campaign, I myself was a victim when a bomb I was dismantling was detonated by a timing device. Something caused me to pause, stand and step back a pace seconds before it blew. The extent of injury was such that Reuters International reported me dead on arrival.

Back on duty a month later, with the toll rising, these events no doubt coloured my judgment as to the rights and wrongs of taking the terrorist leaders out of the equation with or without admissible evidence, a plan which was at that stage still known to only a few. There was no doubt about the complicity of the leaders. Evidence was drawn from a variety of sources - reliable informers, phone and office bugging, stolen or copied documents and stored in top secret files. Not the sort of stuff to present in a good British trial perhaps but damning nevertheless. Inevitably, the imperative of saving innocent lives outweighed considerations of fair trial and justice by established rule of law and Government House handed down the order to act.

Held in a secret location, cells dug deep in the western slope of Hong Kong Island, the detainees were fed, clothed and given daily exercise periods. I know from personal involvement they were humanely treated. None was subjected to physical or mental pain. There was no torture but they were interrogated, and they were deprived of their freedoms, contrary to British Law.

The Chinese have a saying that to kill off the snake you must first take its head. That is how the Cultural Revolution that had spilled across the border from China was ultimately shut down in 1967. Despite protests from International Red Cross, the United Nations and the Chinese government, nothing swayed the determination of the government to hold the leaders incommunicado for three years. For months there were no visitors, not even lawyers. Indeed only a few knew of the hidden location where they were held. Crucial to the success of this bold plan was the overwhelming public support for these extreme measures from the Hong Kong Chinese and the media. Despite my essentially liberal conscience, I have never doubted that what was done, had to be done in the circumstances of the time.

Now we, in Australia have to make some tough decisions “in the circumstances of the times”. Does terrorism demand we question and even overturn our traditional values? What do the Australian people expect of their government? Should known terrorists be left alone to do their own fanatical thing until admissible evidence can be mustered, or should society be protected at all costs? The reticence of the opposition on this issue speaks volumes as to the real depth of not just the moral but the political dilemma.