7.1 Personal Liberty Too Often Taken For Granted
From Personal Liberty by LJM Cooray (1996)

In many countries, individuals live in fear of their rulers. A knock on the door can mean arrest and imprisonment without trial and even torture and death. People brought to trial are denied a fair hearing and charges often concern acts which are regarded as legitimate conduct in the democratic world. Gaols in these countries are occupied by prisoners of conscience and political dissidents. There were four million people in the jails of the former Soviet Union who were guilty of no criminal offence by western standards.

Broadly speaking, totalitarian states negate personal freedom by official violation of due process or by the enactment of unjust laws. They practise arbitrary arrest, detention and punishment. They also prohibit types of conduct which are essential to human dignity and freedom and thereby make criminals of otherwise innocent citizens. For example, in communist and fascist states political dissent is regarded as criminal conduct and attracts heavy penalties. Although the former Soviet constitution supposedly guaranteed free speech, criticism of the Soviet political system was considered treasonable and critics were imprisoned, exiled, subjected to horrific mental manipulation or physical mutilation and exterminated. In some Latin American states, officially condoned or private death squads eliminate political dissidents. Everywhere in the totalitarian world the personal liberty of the citizen is in constant jeopardy.

A minority of nations are democratic societies which value personal liberty. They share legal and political traditions which provide a large measure of protection to personal liberty. The common law, partly codified and supplemented by statute, offers the citizen a wide range of safeguards calculated to ensure that he is not deprived of personal liberty except in accordance with the law.

Personal liberty means not only freedom from unlawful physical restraint or harm, but also freedom from arbitrary interference with one's privacy and lawful belongings, which, in practice, means freedom from arbitrary search and seizure of personal belongings. A myriad of common law and statutory rules protects these rights and a comprehensive survey of the law on this subject is outside the scope of this publication. The common law formulated rules to safeguard personal liberty in relation to arrest, detention, use of force, invasion of privacy and procedure in relation to trial.

It must be appreciated that personal liberty can be protected only by a combination of principles, each of which is indispensable to liberty. Freedom from arbitrary arrest, detention or punishment is of limited value if the law penalises ordinary moral conduct or non-violent political conduct. Freedom is also ineffective if there are no effective remedies for infringement or no safeguards to ensure fair trials. Procedural and evidentiary safeguards are of no avail unless there is an impartial and independent judiciary. The combined operation of these principles alone can guarantee the effective enjoyment of personal freedom.

A fair trial, before deprivation of liberty and punishment, is the ultimate institutional safeguard of personal freedom. Protection against abuse of the investigatory process is of no avail if a person can be unfairly tried and convicted.

The most important principle relevant to a fair trial is the presumption of innocence. In common law jurisdictions it means that an accused person is entitled to an acquittal if the prosecution fails to prove the commission of the offence beyond a reasonable doubt. The rule itself is inflexible, although the accused may sometimes be required to prove certain facts peculiarly within his knowledge. This principle, more than any other, demonstrates the concern that a citizen should not be deprived of his personal liberty except on the most cogent proof of guilt. However, even this hallowed principle of the common law is undergoing considerable derogation by legislation. There exist about 220 provisions in Commonwealth legislation alone that place the persuasive burden of proof on the defendant. Professor G de Q Walker, Crisis in the Rule of Law, paper delivered at the Mont Pelerin Conference, Sydney, 23 August 1985.

Apart from the presumption of innocence, a person facing trial in a common law court is entitled to the protection of detailed procedural and evidentiary rules. These rules have been developed to ensure, among other things, adequate notice of charges, adequate opportunity to prepare the defence, adequate representation, exclusion of doubtful evidence and the effective conduct of the defence through means such as the examination of witnesses and the making of legal submissions. Additional safeguards may include trial by jury, public trial and the prevention of prejudice by unfavourable publicity.

Until very recently, in most western countries infringements of personal liberties were strongly resisted and there was constant agitation for the enlargement of these freedoms. The personal liberty enjoyed by individuals in democratic countries is too often taken for granted. The difference between living in Australia and in a totalitarian state is not appreciated. If the importance of personal liberty were not taken for granted and was appreciated, there would be more concern about the implications for personal liberty of the gradual increase in the size of government.