I. Introduction

The problem with attempting a legal analysis of Julian Assange’s case
is that one does not know quite where to start. If I resort to a little fanciful imagery, the facts
and issues involved appear to be arranged in several concentric layers.
At the outermost layer stands Assange’s and Wikileaks’s work as
activists/journalists, particularly the truths they have revealed about
the US-led “War on Terror”; for this they have been both acclaimed as
crusaders and reviled as anarchists and cyber-terrorists. At a deeper
layer lie the charges of rape
filed against him in Sweden. Nested within this are the proceedings
instituted on the basis of these charges for extraditing him from UK to
Sweden. This engenders at a technical level several subsidiary issues
such as whether
the extradition order (or to be precise the European Arrest Warrant or
EAW) was appropriate given the prima
facie
minimal evidence on record; whether the EAW should have been issued
when Assange had not even been formally charged with any offence;
whether the proceedings were otherwise motivated, and so on.

All these
issues were adjudicated upon, and dismissed, by several UK courts.
Finally, the sole point on which proceedings at the Supreme Court were
grounded must constitute the innermost layer of all: the question
whether
or not a Swedish prosecutor satisfies the requirements of the term
“judicial authority” and is thus qualified to issue an EAW. Construed
according to its common law meaning, the term excludes prosecutors from
its ambit and thereby invalidates the EAW, whereas a wider reading in
accordance with the practice of civil law countries enables the Warrant
to remain valid and thus enforceable. In other words, this entire episode
ultimately comes to rest on the single question whether “judicial
authority” ought to be construed according to its common law
or civil law meaning – “which is to be master – that’s all”, as Humpty
Dumpty famously declared in Through
the Looking-Glass.

Or is that all? Perhaps not. For one, commentators such as John Pilger suggest that
pervasive links exist across the layers; specifically, the rape
and other charges are a device to get him to Sweden, from where he can
be further extradited to the United States. And we cannot ignore how the
interpretation of “judicial authority” will impact on issues as diverse
as free speech, the “war on terror”, the right to information, the law of rape, and extradition. Moreover, and much more significantly in my opinion, when the issue is
subjected to a close examination a pattern appears to
replicate across all the layers. At stake in each layer is the question
whether or not one or more civil or political right of the individual
ought to be diluted in consideration of “larger” interests – at times
national, at times transcending even that. The Wikileaks issue can be
construed as an attack
on free speech as well as the right to information and transparent
governance, particularly in regard to the “War on Terror”. While the
Assange rape allegations may be perceived in terms of a feminist
vindication in some quarters, to my mind the hard core of the
issue lies not the
offence of rape per se,
but rather in the question whether an EAW may be legitimately issued
merely for questioning a suspect very early on in the investigative
process (and that too by ignoring exculpatory evidence), and whether it
amounts to a denial of the accused’s due-process rights. This renders
into a straightforward individual-versus-the-state conflict which bears
little connection to the issue of rape.

The interpretation of “judicial
authority”, our “innermost layer” so
designated, might be considered the apotheosis of this tendency. In the
common-law, the appellation “judicial” is invested
with considerable significance. Authorities designated as such are
invested with discretionary powers denied to other authorities.
Consequently, as a safeguard against the arbitrary exercise of such
powers, they are accountable not only to norms of legality and
reasonability in common with other authorities, but also to more
rigorous standards such as fairness and natural justice. These
safeguards do not figure in the civil law conception of the term, which
is considerably wider. Thus  construing “judicial authority” in
accordance with its meaning in civil law will surely erode much of the
protection and safeguards the common law conception of the term extends
to individuals.

Thus we see that arguments favouring these “larger interests” raise
perturbing concerns. To begin with, is all this legally valid, that is,
do our legal systems permit such extensive scaling-back of civil and
political rights? Even if its validity is not in question, what is the
rationale behind, say, issuing an EAW and a red-corner Interpol notice
within two months of reopening investigations, and that too without
formally charging Assange as an accused? Even if it is conceded that
Swedish authorities have the power to do so, have they, or anyone else,
ever contended it was the right,
or even an appropriate thing
to do? And if so, on what grounds? Similarly, as it is the EAW system
has been heavily criticised
because of the
arbitrariness it has sustained in the past. Widening the ambit of
judicial authority in this fashion will erode the protection the common
law conception confers on individuals, and thereby render them further
vulnerable to the caprices of any and every EAW Framework
Decision
member-state. Beyond considerations of expediency as defined by the
need for an efficient
Europe-wide system of extradition, what purpose will such widening
serve?

Examining the outermost layers reveals that at least attempts
have been made to project the “War on Terror” as reason or purpose. The
inner layers, entailing issues predominantly legal in character, do not
even aspire to such justifications. According to Pilger, the
consequences of Assange’s deportation “lie not in Sweden but in the shadows cast by America’s
descent into totalitarianism.”
In the sense that once Assange reaches Sweden he becomes vulnerable to
be extradited further to US, Pilger is of course entirely right.
However, it is equally true that the legal
consequences of the entire episode will be borne not so much by America
as
the law of Sweden, of UK, even EU law as a whole. And if the
scaling-back of rights is anything like what is envisaged here, then
surely developments here will impact on the entire “free world” as we
know it. Suffice it to say, therefore, that a re-appraisal of what I
refer to as the respondents’ narrative (i.e.
the gamut of arguments ranged against Assange) is urgently called for.
It entails implications so far-reaching that regardless of the ultimate
outcome of the
case (that is, whether or not finally Assange is extradited to US), it
needs to be ascertained what this narrative really stands for
(legally and in the larger context), what its long-term consequences
are and, most crucially, what it means for the individual.

To this
end, I undertake here a scrutiny of three specific aspects of the
extradition proceedings against Assange. First,
tenability: This aspect addresses issues such as whether the arguments
in favour of extradition are based on a valid or acceptable
interpretation of laws, and also in this connection, whether the
involved facts have been construed in a proper manner. Specifically,
can scaling back civil and political rights on the scale contemplated
be sustained under the very laws that recognised these rights in the
first place? Second,
justifications: Whether or not the respondents’ stated positions lie
within the letter of the law, civil and political rights are surely
matters so consequential that abridging or curtailing them should be
undertaken only for good reasons. So what kind of reasons have the
respondents adduced in their favour? Is it their contention that the
issue is of little consequence as such? Or that the law already has in
place safeguards to replace the ones taken away? Or that even if no
such alternate safeguards exist, nevertheless curtailing existing
rights and protections is desirable for the greater common good,
particularly in the context of the “War on Terror”. Such justifications
demand close scrutiny, because it is within them that the larger
intentions and purposes of the respondents’ position are embedded. Third,
consequences: An issue of this magnitude is bound to bear multiple
consequences, both intended and unintended. This holds particularly
good for issues of interpretation. How will construing “judicial
authority” according to its civil law meaning affect the EAW system?
Will it aid or hinder the system’s original aims and objectives?

In
addressing these issues, I initially focus on the interpretation of
“judicial authority”, i.e.
the innermost layer. This is for the simple reason that all the High
Court had dismissed all the other issues raised, including whether an
EAW could be issued merely for questioning a suspect, whether EAWs are
appropriate for the offences alleged, and so on. I strongly disagree
with this conclusion. In my view, these issues are not only of
themselves of great significance, but also still formally relevant in
the sense that they play a role the construction of “judicial
authority”. Hence the scope of this article ultimately extends to them
also, albeit in an indirect manner.

[Continued in Part II]