I was distressed to read today about Seena, a 9-year-old asylum seeker from Iran who was orphaned after the boat in which he was travelling sank in December last year. Seena has been in immigration detention on Christmas Island since that time, but was allowed to the mainland the other day for the funerals of the asylum seekers who drowned, including his father’s funeral. His mother’s body has not been recovered. He has extended family in Sydney who would like to care for him, but the Federal Government is proposing to return him to immigration detention on Christmas Island.
No doubt there are some who say, “Oh well, nothing to be done, the law is that unauthorized arrivals are detained. The law is the law, it must be upheld.” To the contrary, I argue that sometimes it is necessary to create an exception to the rule in circumstances such as these. I believe that principles of mercy may be used to rectify the law where it falls short because of its generality.
Mercy operates when ordinarily someone would be subject to the full force of the law, but this should not occur to a particular person because of his difficult personal circumstances. Mercy is based on propriety, not entitlement. A person can only argue that it is proper and just in the circumstances that an exception ought to be made, but they cannot argue that they have a right to mercy.
John Tasioulas has identified four paradigm cases where mercy may be appropriate:
- Where the person’s history and upbringing may have presented obstacles to forming a decent and law-abiding character;
- Where wrongdoing has occurred in a context which generates reasons for leniency because there were obstacles to law-abiding behaviour (eg, where a woman kills her abusive spouse);
- Where a person is already suffering some grave misfortune which will be cruelly exacerbated if the full force of the law is brought to bear according to his just deserts; and
- Where a person has sincerely repented of wrongdoing and made apologies and reparation to those he wronged.
(See John Tasioulas, ‘Mercy’ (2003) 103 Proceedings of the Aristotelian Society 101).
Now, to be honest, I have never been convinced that immigration detention is deserved in the first place. It seems unjust to incarcerate a person who has not been charged with any crime – a violation of the principles of habeas corpus. But even if one believes that immigration detention generally is legitimate, then I believe that mercy can operate to provide an exception to it. A child should not be punished like this.
Clearly Seena falls within category 3 above. He is a child who has suffered a grave misfortune (losing both his parents) and this will be exacerbated if he is returned to detention. There are relatives who are willing to care for him and provide him with love. There is also arguably a touch of category 2: if he has done wrong, he has done so at the behest of his parents and did not really have the same choice that an adult would.
Of course one cannot argue that Seena has a right to mercy, but one can argue that it is proper and compassionate, in the circumstances, to extend mercy to him and allow him to live with his extended family.
I am pleased to read that a lawyer is challenging the return of those who were victims of the sinking of the asylum boat to immigration detention offshore. I hope that the challenge succeeds. Federal government, please extend mercy: it would make me think better of you. To think I hoped you’d be more compassionate than the other lot!
By the way, I still think an overhaul of the way in which we look at asylum seekers and allow offshore applications is necessary. It’s a hell of a lot better than either (a) locking people up or (b) giving them incentives to risk their lives on leaky boats or (c) an unholy mix of the two.
(There is a petition seeking mercy for Seena here, for those who feel as I do).