In the atmosphere of outrage that followed the end of war in 1945 it was relatively easy to get consensus, in the nascent United Nations, for the idea that there are universal human rights. One of the good ideas that Mrs Eleanor Roosevelt’s committee for drafting the UN Declaration of Human Rights came up with, in enjoying that supportive tide of opinion, was to enshrine the idea of equality before the law – unqualifiedly implying equality for anyone anywhere in the world before any properly instituted and administered law.
About the only thing now universal about human rights is the irritation they prompt in governments. How inconvenient human rights are, how difficult it makes prosecuting undesirables or deporting them or otherwise flicking them off the sleeve of society because they are disagreeable or plain bad! The idea that even those suspected of the worst crimes have a right to get the fullest possible hearing has come to be regarded as a nuisance, as if it is plain in advance that the processes of the law are mere window-dressing for what everyone already knows about this rabble-rousing mullah or that aged celebrity and his sexual tastes, viz. that of course they are obviously guilty and that’s that.
In some jurisdictions it is proposed that illegal immigrants can only appeal against deportation in their country of origin. This is a bald-faced piece of trickery: it exploits the fact that the difficulty and expense of appealing from abroad would stop most such folk mounting a challenge to their expulsion. Worse, it introduces a very unhealthy change to the principle of equal treatment before the law, by enshrining discrimination against a class of people in effect judged to be less deserving of a full hearing on the same terms as everyone else because already supposed to be in the wrong.
Consider what is at stake. The point is not the independently correct one that each individual has the same right as every other individual to the same treatment at law, for to insist on this is to invite the rejoinder that in immigration cases the defendants are not, or not yet, recognised as citizens and therefore do not have the same rights that citizens automatically enjoy. To get into a debate on this ground is a distraction. This is clear from the fact that whether or not a person is a citizen, if he is indicted for a crime in the jurisdiction he can be tried and if found guilty punished for it there, and accordingly any such person is being treated equally by the law.
The real point in the case of deportation appeals is the law itself: that it should be indifferent to facts about an individual who comes before it other than those germane to the case in hand. People appealing against a deportation order on the grounds that they have a right to stay should expect the law to consider and decide on the merits of their cases, without the law front-loading major disadvantages to offering them its remedies. To do this is to enshrine injustice in statute.
Mere self-respect should be enough to require of people in developed countries that they have a legal system that is scrupulous in what it offers to anyone who comes before it, and for whatever reason. There is no difference in principle between having differential laws according to, say, your race (Aryan or Jewish? Caucasian or not?) and whether one has the same opportunity as people in non-immigration cases to appeal against an adverse decision.
The explicit intent to make it more difficult to seek a review of a court decision because a person belongs to a singled-out class of appellants is accordingly wholly unjustifiable. A legal system should not merely dispense justice, but should do it justly. It would be interesting to know what lawyers who found themselves in such a regime think about politicians who tell them to be unjust in the administration of justice, and what they would do in response. If anyone should be expected to uphold the rule of law, it is the law’s own servants.