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When Democracy Gets Personal. -Civil Disobedience in the Case of Rejected Asylum Seekers.

What do you do when a stranger comes to your door and tells you his life is on the line?  What happens when your government tells you it is illegal to help him?  Do you take him in or tell him you have nothing to offer? Or is the answer ever cut in such black and white terms.

The Threshold of Pain

“When they step over my threshold, then I am responsible. It is MY problem,” says Leif Bork Hansen, a Danish priest and famous friend of refugees who has harboured rejected asylum seekers for over a decade. Sitting calmly in his quiet home, down the road from the old, traditional Danish church where he takes the pulpit every Sunday, his eyes suddenly light with conviction, his voice takes on a determination that convinces you that, indeed, this issue of underground refugees is not just a question of political semantics. This is personal.

But what happens when the fundamentally personal problems of life, death, and human dignity become necessarily tangled in legal debate?  When is civil disobedience necessary for justice and when does it pose a threat to democratic procedure? This is a problem at hand in Denmark today.  The last ten years have seen an unprecedented number of refugees cross Danish borders in pursuit of safety.  In the last few months, the Danish government has responded to this flux with legislation severely curtailing their chances of finding a haven within the country.  So now what happens that the personal problem of a persecuted person butts heads with the legal limitations of the state?  The issue is nuanced, the solution unclear.

When dealing with refugees who have gone underground, the issue becomes particularly difficult.  On one hand the topic deals with the plight of human beings, and in this respect the question becomes one of morals.  How does one stare down the face of suffering and persecution with an eye of indifference?  

However,  the fact remains that these refugees must go underground because they remain in Denmark illegally.  This is where the solution blurs, and questions regarding the justice of both laws and personal actions arise.  This issue goes straight to the heart of democracy. The core of democracy is the ability to protest the system, but if the democratic system allows freedom of any action, it would eventually undermine itself. 

These questions can be answered both in legal terms and in moral terms, and often the debate takes form of giving preference to either the moral or the legal argument. 

The Statistics of the Masses

According to national statistics 2003, 297 refugees have disappeared and are likely living in the underground network of rejected asylum seekers.  This means that approximately 300 refugees have resorted to the desperate condition of living in hiding, unable to go back to their original country, and denied safety and stability in Denmark.

In June 2002, the Danish government passed new legislation which severely curtailed the ability of foreign refugees to obtain asylum in Denmark.  The law included abolishment of the de facto status and an introduction of a new “protection status,” increased use of the manifestly unfounded procedure and the abolishment of the embassy procedure.  Also, the number of members on the Refugee Council hearing the cases of asylum seekers was reduced from five to three members. 

These provisions resulted in a profound decrease in acceptance of asylum seekers in Denmark.

In conjunction with this legislation the government has also proposed a bill to tighten laws against those who harbour rejected asylum seekers. Combined, these recent changes have fostered a heated debate concerning Denmark’s compliance with international laws on human rights, and whether or not the current government policy upholds the system of checks and balances necessary to the system of democracy in Denmark. Furthermore people have started to take the law into their own hands in objection to what is called unethical and cruel asylum policies.

And the Individual Behind

Behind these dry statistics we find the reality of human suffering.  In reference to his own experiences harbouring underground refugees, Bork Hansen recalls, “I had a family of four living in my 15 square meters room, with nothing but their own company and T.V as a leisure activity. One of the refugees I harboured needed constant medical attention, which had to be provided without the knowledge of the government. This became extremely difficult considering that the refugees were afraid only to go outside to take a breath of fresh air. They were afraid of the repercussions in Denmark, but even more afraid of what would happened if they were to be sent back.” 

The hard conditions alone had psychological repercussions for both the refugees and Bork Hansen himself. But added to the hardship of helping the refugees, the situation was dragged into court and Bork Hansen faced severe fines and a possibility of incarceration for breaking the law.

“But it cannot stop me”, he says and ceremonially quotes Kierkegaard; “The individual comes before the masses.’ One should never shelter oneself behind the masses or behind the laws and norms of a society, and believe that one does the right thing. We need to feel responsible towards one another and compassionate towards our fellow human being.”

Carl Christian Ebbesen of the Danish People’s Party finds this view incomprehensible.  A representative of the right wing party endorsing these limitations, Ebbesen stands by party policy, saying, “[This view] is what made us change the previous legislation,” he says with conviction in his own moral beliefs. “The law itself is not made for a single person, but for the greater population. In the case of refugees, one must consider the economical and legal implications for everyone as a whole, not the individual needs. That would lead to chaos, because we all have different needs.” 

As a legal expert on human rights, Hans Boserup balks at such a view of the law. Boserup’s views have formed after years of working within the confines of the system as a champion for the rights of refugees and asylum seekers.  After years of feeling thwarted by governmental restrictions, he claims, “This is the kind of view that will lead to a lack of balances between the concerns for human rights and the concerns for public efficiency. The purpose of the law is to enable the individual have a fair trial.  A fundamental principle of the law is that justice must not only be done, the public must also be able to see that it is done. Right now, the government has control of the court and no one can see that justice is done for these asylum seekers.” 

Boserup rages against this system, which he claims lacks the cornerstone of democracy, the checks and balances of power. “Through this change of legislation, the government gained almost total control of the legislative process. This means that no one checks the government and the governmental control will always lead to an interpretation of legislation in the favour of the administration.”

Bork Hansen agrees with Boserup.  He says, “It [the Danish Refugee Council] is not a real court because it is closed.  They mix Bertel Haarder’s ministry with the Board of Refugees.  It is mixed, and closed.”  

“Actually, this has yet to be a practical change in procedure,” says Claus Juul, a legal consultant for the Refugee Council.  Working for one of the central governmental organizations dealing with refugees, he provides a pragmatic voice in the midst of this emotionally charged debate. “The only thing that changed with the new legislation, is that the government now pays less wages for the same process, only with less competences accumulated on the council.”  He adds that  “The government maintains that the civil service will see justice done of their own accord.” Saying this Juul downplays the importance of the legislative changes and emphasises the economic considerations.

Another sound critique against the changes in legislation concerns the question of whether or not Denmark was violating international law.  More specifically, the debate has focused on Denmark’s 

borderline position between compliance and violation of international law.

The main focus of this debate concerns the borderline policy, or what becomes the problem when international law is no longer the minimum of policy making, but rather the absolute maximum of what is being done concerning refugees and human rights. This has turned into a debate about ethics and morals. How much should one focus on the law, and how much can one bend the law in the name of personal ethics and human life.

Bork Hansen believes that there can be no compromise when it comes to personal ethics and human lives, even when the law allows it. He claims that the law, in the case of the refugees, only “Provides the government with an alibi for making inhumane decisions.  This allows the government to do bad things because they have created an alibi in a bad law.”  Refusing to accept this system, Bork Hansen employs his own judgement of compassion to decide whether or not to turn away a fellow human sufferer.  Bork Hansen says, “I find this legal hard line against asylum seekers an unacceptable denial of democratic justice. The system itself is flawed.” This a basic legal justification for Bork Hansen to engage in civil disobedience.

By definition, civil disobedience is extralegal.  Therefore, the same legal arguments used to justify current legislation against asylum seekers is also used to justify the harsher prosecution of those who break the law by harbouring refugees.  At the same time, however, the same legal argument used by others to condemn this legislation also justifies the civil disobedience of hiding illegal refugees.  

“In Heaven there is no law and the lion lies down with the lamb. In Hell there is nothing but law.”*

We now come to a moral impasse.  The question boils down to the moral and ethical questions surrounding this legislation, and its serious effects upon the lives of real men and women.  Knowing the weight of the outcome, this decision between legal compliance and civil disobedience strikes a profound chord of ethical principle.

However, in a world so rife with conflict and injustice, this question becomes a philosophical hydra.  “Perhaps we must admit to ourselves that the question of refugees, the fruit of global corruption, cannot realistically be solved by Denmark’s legislative policy.”  Such is the sobering, realistic argument of Juul, who cites reality as the ultimate check on idealistic opposition to Denmark’s policy curtailing asylum seekers and prosecuting the underground.

“The state of the world is immoral,” says Juul, shaking his head.  “ Inequality can never be solved by provisional status [allowing refugees to stay].”  According to Juul, the sad truth, simply stated is that no legislation, no matter how lenient or harsh, can provide an answer to this dilemma of human rights among the persecuted and unfortunate.  In his ideal world, Juul admits that “It would be nice to find legal aid for all refugees, to make it easier to obtain asylum,” but finds this hope impossible in practice.  “We’re dealing with 6,000 asylum seekers,” says Juul, spelling out the statistical obstacle.  “There are so many that the system would simply go down.  If we want to help all the suffering regions of the world we need economic aid and other developmental plans in these parts of the world, rather than relying on legislation in Denmark.”  

Furthermore, though he admits that the legislation could, and perhaps ought to be applied more leniently to both asylum seekers and those who harbour illegal refugees, Juul also feels that, “Legally speaking, Denmark’s new laws are in agreement with Danish obligations to the European Refugee Convention.”  It is with this legal claim of fair play that Boserup takes issue, disagreeing with the policy whole-heartedly.

“Just living up to the international conventions binding for Denmark would be a great progress,” is Boserup’s scathing rebuttal to the claim that Danish policy has adequately complied with international law. He continues to spell out the shortcomings of Danish justice, saying, “Living up to interpretations of the conventions made by courts of law worldwide would make Denmark a civilized country. From a philosophical point of view the administration is characterized by behaviourism, logic positivism, linear one-dimensional thinking, lack of empathy, intentional ignorance on relevant health information, misguiding UN or intentionally hiding important information for UN.”

Where Juul cites the irreversible condition of suffering, and the government’s technical compliance with international stipulations, Boserup demands that this borderline justice is not the best Denmark, or any nation, can do.  He says, “If we put our faith in a fundamentally close-minded government indifferent to a higher ideal of justice, we sell our notion of rights at a very cheap price.  There must be a better solution than what the government offers.” 

While the legal parties quarrel over what Bork Hansen views as petty legal argumentation, he himself puts Boserup’s claim into action.  Agreeing with Boserup’s argument that the Danish government itself is morally flawed, Bork Hansen sees civil disobedience as the only way to reclaim justice and democracy from the government’s ethical vaccum.  “Danish democracy is destroying itself,” he says.  “This is not freedom.  Therefore you cannot use the law over your morals.  You must use your own conscience.  This is called civil disobedience.”

Convinced that the answer to the issue of asylum seekers lies in ethical integrity, Bork Hansen laments that today the ethical question has left the political realm. According to the priest; “we have divided law and ethics and politics and conscience, and when you separate ethics from politics, what are you left with? Tactics.”  

When human beings rule themselves by tactics rather than ethics, any number of injustices may occur.  Bork Hansen expresses the danger of these tactics in chilling terms.  He cites Zygmunt Bauman, who says “The state acts like a gardener cultivating cultural plants and weeding out the foreigners.” Referring to the Holocaust, he continues, “We’ve had genocide in Europe before, and again we are in a dangerous situation.”  

The solution, according to Bork Hansen, lies in the individual acting upon his moral beliefs in defiance of the law.  “Hate creates hate.  Terror creates terror.  Who shall stop that?”  Answering his own provocative question, he states, “A single person shall stop that.  It is the individual who must stop this circle.”  Thus, Hansen justifies his actions in defying Danish law by harbouring rejected asylum seekers who remain in Denmark illegally.  

Ebbesen believes that such actions are nothing more than criminal outputs, and that in a society like Denmark, where democracy gives room for changes, no ideology could prevail him to step outside the system to try and change it. “If there is a law saying this is the way it will be, that is the way it should be. They [the people harbouring refugees] should use the ways of democracy to influence the law”, he says.  With great conviction in the Danish bureaucratic system, he adds, “We have one of the best systems, the government is not corrupt and these people can trust that.”

Bork Hansen claims that he has tried the democratic way. He wrote to newspapers and stirred a debate, he even pledged the government to help the refugees. Nothing happened and people who begged for his help were being shipped out of the country, unrightfully according to Bork Hansen. “So what do you do?” he asks rhetorically, “Everyting you can. You cross the red light to save someone if your conscience tells you to.” And to Bork Hansen this is what it is all about – the individual’s conscience to help someone you believe is in utter need. His distrust in the system and what he believes to be the breakdown of democracy, through the separation of ethics from politics, led him to go by his heart.

While Bork Hansen displays a profound distrust in the system, Juul believes in its ability to uphold justice and claims that  “in most cases the decisions by the Refugee Board should be upheld. Firstly because the Refugee Board generally conducts a thorough investigation in order to make the right decision.”  Along with this faith in the system, Juul cites the potential problems that might arise should legal decisions be defied, adding,  “Secondly, because the whole asylum system would loose it legitimacy, it became common practice that rejected asylum seekers just stayed on in Denmark, even though their application had been turned down.”

But this is the paradox of the situation: the civil disobedient has lost its faith in a system that needs to keep people’s faith in it by striking down on civil disobedience. Otherwise there would be anarchy, but without it there would be no change and no challenges to the flaws of democracy in Denmark anno 2003.

The Necessary Tension

In a democracy the tension between civil obedience and disobedience is a necessary tension. Civil disobedience challenges the commonly accepted laws and norms and keeps the guardians of the system alert and in constant dialogue with the changing public opinion. However, civil disobedience has to be checked and controlled by the system, in order for it to uphold itself. 

The paradox of civil disobedience is that while it aims at effective legislation, the legislative system itself can only respond, but never be involved. If civil disobedience was to be incorporated in the system, this would lead to mistrust in the state and, in an extreme case, anarchy. 

When one holds the torch of civil disobedience they must recognize this action for what it is.  Like fire, it can serve as a powerful tool, exposing injustice and lighting the way to a better solution; conversely it can easily burn out of control.  Therefore, this concept can never be taken lightly, but must always be performed with caution.  You’ve got to know what you are doing to prevent even the best of intentions from engulfing the very justice you attempt to serve.

Resolving the tension

So is the case with the issue of harbouring illegal refugees.  In one light, this is an issue that deals with the fundamental principles of compassion and understanding for human suffering.  This is an issue of tolerance and willingness to open ones doors and ones borders to the less fortunate masses in the world.  In another light, this is an issue that deals with very real, and justifiable legislative considerations of resources, order, and due process of law.  

In the case of the rejected asylum seekers the argument for civil disobedience is mainly, to Bork Hansen, a moral question about helping a fellow human being. But also legally, both in Denmark and in the international community, criticism has been made towards the policy and the way the system is working. In this case the act of civil disobedience becomes the extralegal version of the legal critique of the legislative system. Because critical voices come from such a large spectrum and both from within and without the system, the question of harbouring refugees can not be ignored as just another case of illegal behaviour, but should be viewed as an extreme example of a broad opposition towards a too tight legislation.

Denmark has reached a crossroads in legislative history which involves both moral consideration and legal practicality.  However, the legal and moral stands concerning the plight of and limitations against asylum seekers have parted ways.  The legislative process of the system, and the moral considerations of human rights and compassion charge at each other from opposite sides, and due to this opposition, consensus is difficult, if not impossible, to reach.  If Denmark is ever to come to a solution that is both legally feasible and morally sound in its refugee policy, these two principles must incorporated together.  

The issue of refugees seeking asylum and going to desperate lengths to attain it will not go away.  Yet to deal with this reality, the legislative system must work with the principles, if not the practice of civil disobedience.  

Bork Hansen says, “ To engage in civil disobedience demands a firm moral stand, and a firm belief in what you are doing. I can justify my actions according to humanitarian concerns and basic Christian values. Now all I ask that the system does the same.”

 

References

 

Interviews

Boserup, Hans; Human Rights lawyer, 06-16-2003

Ebbesen, Karl Christian; 06-20-2003

Hansen, Leif Bork; Minister in Kgs. Lyngby Church, 06-18-2003

Juul, Claus; Legal Consultant for the Refugee Council, 06-17-2003-06-22

Articles

Byman, Bjørn, Ingen titel,  Information d. 11.02.99; http://www.arnehansen.adsl.dk/990211BorkHansenSlavoner.htm 

Borg; Orla; Asylpolitik: Hårdere straffe til flygtninge venner. Jyllands-Posten 04-25-2003

Sources

National statistics on refugees 02-28-2003

Convention relating to the Status of Refugees, adopted on 07-28-1951. Office of the High Commissioner for Human Rights. http://www.unhchr.ch/html/menu3/b/o_c_ref.htm 06-19-2003

*Gary Gilmore

 

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