By A.G. Noorani

OPPRESSED by arbitrary denials of visas by New Delhi and Islamabad, especially after 26/11, citizens of Pakistan and India can take heart. There is a chink in the armour of both capitals provided lawyers are ingenious enough to know how to widen them.

On July 17, 2009 a US court found that the government had not adequately justified its denial of a visa to a leading scholar of the Muslim world. The American Civil Liberties Union (ACLU) contended that the government’s exclusion from the US of Prof Tariq Ramadan violated the First Amendment rights of organisations inside the United States that had invited him to meet and speak to their members.

The US Court of Appeals for the Second Circuit found that the First Amendment rights of Americans are at stake when foreign scholars, artists, politicians and others are excluded. It relied on a 1972 Supreme Court ruling in Kleindienst v Mandel that the citizens have a First Amendment right to “hear, speak, and debate with a visa applicant”.

Prof Ramadan was invited to teach at the University of Notre Dame in 2004 but the US government revoked his visa, citing a statute that applies to those who have “endorsed or espoused” terrorism. In January 2006, the ACLU and the New York Civil Liberties Union filed a suit challenging his exclusion on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Centre. The government abandoned its claim that he had endorsed terrorism, but continued to defend its order on the ground that he had made small donations to a Swiss charity that, the government alleged, had given money to Hamas.

It was a limited victory; but a good dent was made. The constitutions of India and Pakistan embody the fundamental right to freedom of speech which includes the right to receive information. Courts in both countries cite decisions of the US Supreme Court on the First Amendment, the guarantee of free speech.

The American decision is useful as a basis on which to mount a challenge in the light of our needs. In 1972 the US Supreme Court held in the Mandel case that where the executive exercises the power “on the basis of a facially (prima facie) legitimate reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication” with the foreigner denied a visa.

But this ruling was facilitated by an unfortunate concession by counsel for the petitioners that the government was entitled to “conclude that Mandel’s Marxist economic philosophy” fell within “the scope of a law which barred aliens who advocated communism”. He did not challenge the constitutional validity of that law itself; only the refusal to waive this rule.

Ernest Mandel, a Belgian, was a Marxist scholar and journalist, but not a member of the Communist Party. In his case as well as in Ramadan’s, the suit was brought, not by the alien, but by American citizens who complained that their right to free speech was denied by banning the right personally to communicate with the foreign scholar.

The court of appeal ruled only that Ramadan should have been heard in his defence. It was bound by the Supreme Court’s ruling in the Mandel case. That was a split decision. The majority upheld the government’s case but rejected its argument that since Mandel’s writings were available, he had not come. “This argument overlooks what may be particular qualities inherent in sustained face-to-face debate, discussion and questioning.”

What helps us are the dissenting judgments which are strikingly relevant to our situation. Justice William Douglas remarked “Thought control is not within the competence of any branch of government. Those who live here may need exposure to the ideas of people of many faiths and many creeds to further their education.” Indians and Pakistanis badly need exposure to each other’s opinions and feelings.

He ruled that “Congress never undertook to entrust the attorney general with the discretion to pick and choose among the ideological offerings which alien lecturers tender from our platforms, allowing those palatable to him and disallowing others. The discretion entrusted to him concerns matters commonly within the competence of the Department of Justice – national security, importation of drugs and the like.”

Justice Thurgood Marshall wrote a vigorous dissent in which Justice Brennan joined. He recalled tellingly that the earlier cases dealt with the rights of aliens. “At least when the rights of Americans are involved, there is no basis for concluding that the power to exclude aliens is absolute.” There must be a “compelling” public interest to justify exclusion – national security, law enforcement, public health, etc.

Marshall added, “The progress of knowledge is an international venture. As Mandel’s invitation demonstrates, individuals of differing world views have learned the ways of cooperation where governments have thus far failed. Nothing is served – least of all our standing in the international community – by Mandel’s exclusion. In blocking his admission, the government has departed from the basic traditions of our country, its fearless acceptance of free discussion.” As a great judge once wrote, “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error, into which the dissenting judge believes, the court to have been betrayed.”

It is nearly 40 years since Mandel’s case was decided, during the Cold War. Our courts must follow the great dissenters and extend their logic also to those who do not attend conferences but seek only to meet their kith and kin, the exception which the three judges apply to them no less. They pose no threat to security. The acid test of sincerity in the peace process is relaxation by both states of rules for visitor’s visa.

The writer is an author and a lawyer.
Source: Dawn
Date:5/22/2010