On Orwell and the Right Not to Believe: RT (Zimbabwe) v Secretary of State for the Home Department

September 3rd, 2012 | Posted by sambookman in Overseas Jurisdictions

Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it. … Every year fewer and fewer words, and the range of consciousness always a little smaller.

George Orwell, Nineteen Eighty-Four

“One of the hallmarks of totalitarian regimes,” Lord Dyson recently noted in the case of RT (Zimbabwe) v Secretary of State for the Home Department,[1] “is their insistence on controlling people’s thoughts as well as their behaviour.”  In RT (Zimbabwe) the Supreme Court of the United Kingdom unanimously held that it is not an answer to a refugee claim to say that, in order to avoid persecution, the claimant must lie and profess loyalty to a regime, about which she has no political opinion and therefore does not support.  In its judgment the Court extended the principle laid down in HJ (Iran) v Secretary of State for the Home Department.[2]  It also provided a welcome affirmation that the rights to freedom of thought and expression contain negative forms, and that these negative forms – the right not to hold a belief and not to express a political opinion – are fundamental rights.

RT (Zimbabwe): The Facts

The case concerned four refugees, all of whom were from Zimbabwe and had claimed asylum in the United Kingdom.  None of the four appellants were politically active, nor did they even identify as “political people.” As such they supported neither Mugabe’s regime nor for the Movement for Democratic Change (“MDC”) that opposed it. The argument before the Court, however, was that being apolitical put them at risk of persecution.

The Supreme Court was influenced in its decision by the evidence on the state of affairs in Zimbabwe found in the decision of RN (Returnees) Zimbabwe CG.[3]  There the Asylum and Immigration Tribunal held that Mugabe’s regime had unleashed a campaign of persecution across the country designed to ensure that there was nothing left of the MDC capable of mounting a challenge to the ruling party.[4]  It found that:

This campaign has been rolled out across the country not by disciplined state forces but by the loose collection of undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the ‘wrong’ outcome of the March 2008 poll. It is precisely because of that that any attempt to target specifically those who have chosen to involve themselves with the MDC has been abandoned. In our view, there can be no doubt at all from the evidence now before the Tribunal that those at risk are not simply those who are seen to be supporters of the MDC but anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime.[5]

The risk of persecution arose particularly from the use of random road blocks manned by militia gangs and war veterans.  Proof of support for the regime might be demanded in the form of either requiring a person to produce Zanu-PF card or to sing the latest Zanu-PF campaign songs.

The HJ (Iran) Principle and the Convention

The Court viewed RT (Zimbabwe) as “a sequel”[6] to the 2011 case of HJ (Iran) and considered whether the principle set down in the latter case could be extended to the facts of the former.  In HJ (Iran) it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Convention Relating to the Status of Refugees (“the Convention”) and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid persecution.  Following the New Zealand authority of Refugee Appeal No 74665/03[7] in HJ (Iran) Lord Dyson found that refugee status cannot be denied to a person who on return would forfeit a fundamental human right to avoid persecution.[8] He also noted that one of the attractions of the New Zealand approach was that it “facilitated a determination of whether the proposed action by the claimant was ‘at the core of the right or at its margins’.”[9]  Lord Dyson highlighted in HJ (Iran) that, while it was debatable how far such a distinction was relevant to persecution on the grounds of immutable characteristics such as sexual orientation, this framework might prove more valuable in cases concerning persecution on the grounds of religion or political opinion.

The definition of “refugee” in Article 1(2) of the Convention states that it applies to any person who:

[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Lord Dyson noted that there are no hierarchies of protection amongst the reasons for persecution in the Convention, and that the “well-founded fear of persecution” test set out therein does not change depending on which reason is engaged.  The Convention thus affords no less protection to the right to express political opinion than it does to the right to live freely and openly in accordance with one’s sexuality.  The HJ (Iran) principle therefore applies to any person who has political beliefs and is forced to conceal them in order to avoid persecution. The question raised by RT (Zimbabwe), however, took on a peculiarly negative form.  It was well phrased by Lord Dyson:

But what about the person who has no political beliefs, and who, in order to avoid persecution, is forced to pretend he does?  Does the right to hold no political beliefs (and say so) attract Convention protection as much as the right to hold and express beliefs?[10

Judgment

Turning to the international, European and comparative jurisprudence, the Court enumerated a substantial body of decisions[11] establishing that the right to freedom of thought and expression extends to the freedom not to hold and not to have to express opinions.[12]  The Court also considered General Comments (“GC”) 22 and 34 of the United Nations Human Rights Committee on Article 18 (freedom of thought, conscience and religion) and Article 19 ICCPR (freedom of opinion and expression) respectively.  GC 22 states that Art 18 protects “theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”.[13]  GC 34 states that “[f]reedom to express one’s opinion necessarily includes freedom not to express one’s opinion.”[14]  Given this plethora of evidence, Lord Dyson was convinced that the right not to hold a belief is a fundamental right recognised in international and human rights law, and is at the core of an individual’s rights protected by the Convention. Indeed, Lord Dyson went so far as to state: “it is the badge of a truly democratic society that individuals should be free not to hold opinions.”[15]

The Court held there was no basis in principle for treating the right to hold and not to hold beliefs differently,[16] and that there could be no valid distinction between a committed non-believer and one who holds no political opinions simply because she has not given it any thought.[17]  The problem of imputed political opinion was also considered.  Here the Court found that an individual may be at risk of persecution on the grounds of imputed political opinion and that it does not matter that she does not in fact hold that opinion.  Persecution on the grounds of imputed political opinion may occur where a political neutral is imputed with, for example, pro-MDC opinions,[18] or where a claimant who lies and professes loyalty to the regime has her political neutrality discovered.[19]  The HJ (Iran) principle was applied and the claims for asylum were upheld where the witnesses were found to be credible, and sent back to the Tribunal where they were not.

On Nineteen Eighty-Four

There are some who might be surprised at Lord Dyson’s remark that “it is the badge of a truly democratic society that individuals should be free not to hold opinions.”[20]  For surely a truly democratic society is better characterised by a high degree of political engagement and the accommodation of a plurality of political views?

In his novel Nineteen Eighty-Four, George Orwell describes a dystopian world in which Oceania lives under the totalitarian regime of The Party, headed by its quasi-divine leader Big Brother.  The residents of the province Airstrip One are subjected at all times to the surveillance of the state, primarily through technological means such as two-way telescreens, but also through the scrutiny of interpersonal relations.  Everyone must demonstrate her support for the regime, down to feigned enthusiasm every time the name of Big Brother is mentioned.  The slightest deviation – a facial twitch betraying some emotion – might result in persecution.  Holding such unspoken beliefs or doubts about the regime is criminalised (“thoughtcrime”) and it is the job of the Thought Police to uncover and punish thought-criminals.

However, we might ask why The Party is so concerned about political neutrality? What possible effect can a neutral position have on the political rule of the regime? In Nineteen Eighty-Four Orwell gives his protagonist, Winston, a telling line:

If there was hope, it must lie in the proles [the lower class], because only there, in those swarming disregarded masses, eighty-five percent of the population of Oceania, could the force to destroy the Party ever be generated.

It is because the status of a ruling power – be it in Orwell’s novel, or in Zimbabwe – is dependent upon its recognition as such by the disempowered majority that it must so stringently enforce its ideology.  In the context of authoritarian rule, then, a neutral thought is potentially as politically subversive as an oppositional one; or, as Lord Dyson put it, “from their [the regime’s] perspective, there is no real difference between neutrality and opposition.”[21] In times of war and repression, as Orwell himself ironically confirmed in his essay Pacificism and the War, expression and consciousness narrow to a binary: ‘you are either with me or against me.’ When choice takes place within such a binary, it is no longer choice.  When freedom is framed and eventually understood as a ‘for-or-against’ binary, it is no longer freedom.

- David Taylor


[1] RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38.

[2] HJ (Iran v Secretary of State for the Home Department [2011] 1 AC 596.

[3] RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

[4] At [215].

[5] At [216]. Emphasis mine.

[6] At [1].

[7] Refugee Appeal No 74665/03 [2005] INLR 68.

[8] At [113].

[9] At [115].

[10] At [29].

[11] See: Kokkinakis v Greece (1993) 17 EHRR 397; Buscarini v San Marino (1999) 30 EHRR 208; West Virginia State Board of Education v Barnetts (1943) 319 US 624, 642; and Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051.

[12] At [32].

[13] General Comment 22, XLVIII, at [2].

[14] General Comment 34, CII, at [10]

[15] At [43].

[16] At [36].

[17] At [32]-[45].

[18] At [55].

[19] At [56].

[20] At [43].

You can follow any responses to this entry through the RSS 2.0 Both comments and pings are currently closed.