Proposed terrorism law and all that

Past experience and precaution
While the government's intent should not be doubted, there is always some apprehension about the efficacy and salutary impact of tougher legislations in our parlance. Past experience in independent Bangladesh and even before during Pakistan times lend credence to such premonitions. There is cause for worry now when we live in a perilously polarised polity where even national level politicians are not on talking terms. Added to that is the lamentable deterioration in the operational standards of the regulatory outfit. Quite often we hear vociferous complaints of highhandedness and motivated actions of the investigative and preventive units from public figures.

A case in point to illustrate the aforementioned malfunctioning is the investigation of the murder case relating to the death of former Finance Minister, Mr. Kibria. Near relations of the deceased continue to complain that a prime accused of the incident has not been allowed to narrate the actual facts and circumstances. Family members of the victim have been consistently hinting at the planning and conspiracy that were allegedly done by persons, placed in the high and mighty office. Nothing very substantial has been done till to date to clear the air of the suspicions of the victim's immediate relations. The accusing fingers remain pointed.

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It is in the backdrop of such a scenario that one has to be cautions about the probable indiscriminate use of the intended draconian laws. This is not unusual because while the proposed law may serve the so-called political strategy of a political party, the suspected human rights violations will undoubtedly blacken the democratic credentials of our polity. Coming to specifics, one has to say that the process of identifying a terrorist should be discreet and transparent and that administrative and enforcement efforts should be geared towards that. In this regard special precaution has to be taken so that our politicians do not remain under a pernicious impression that interpretation of terrorism laws is their personal turf and the laws shall not be subjected to their personal prejudices and opinion. One must not be oblivious of the fact that even the very prudently crafted law may have loopholes and can be used against innocents and political opponents. In respect of tough laws it is not uncommon in our situation to see the political party in power adopting a hawkish line and then turning into doubting Thomases while out of power.

Citizens in Bangladesh would be happy if the present acts of terrorism do not get the benefit of being treated as political violence. This is natural because the bigoted elements are undermining our pluralistic civil society thereby having adverse consequences on the economic and social development. There has to be a dividing line brought in between mindless violence and violence aimed at a larger purpose. Our proposed law should aim at removing the possibility of subversive activity cloaking itself as 'conflicting ideology.'

The rationale and attitude
Since the terrorists in Bangladesh have the objective of spreading fear and alarm and want to gain concessions, our law makers should appreciate the logic of separating an act of violence from its so-called political context because our intention will be to criminalise a certain mode of political expression. We must be able to reject the right to legitimise violence as part of a larger socio-religious movement. At the same time, it has to be ensured that every criminal is not given a terrorist label only to set in motion the expected stringent provisions of the proposed terrorism legislation. This is so because while every terrorist may be a criminal, every criminal cannot be a terrorist.

The rationale of a tougher law entailing discrimination between terrorists and ordinary criminals is that the bigots in our situation have mercilessly killed the poor, public officials, security personnel and a host of other innocent and defenceless people. No one can deny these stark facts and naked truth by adopting an ostrich-like attitude completely ignoring the manifest danger.

Some ambiguity stems from the use of ideology to justify acts of terror. The terrorist groups are now known to use a careful mix of ideology and violence to achieve their ends. Clearly, there are instances where the use of ideology has been an alibi. Our legislators should be able to ensure that acts of terror are divorced from context and we should look at terrorism as any act that tries to disrupt attempts at reconciliation.

Making the law work
First of all, we must be clear about the foreground, background and history relating to the issue of trying to tackle terrorism legally since existing laws have failed. The UK experience tells us that the main obstacle to dealing with terrorists in ordinary courts was the intimidation of jurors and witnesses by terrorist organisations. Therefore, we may consider if:

I) All terrorist type offences could be categorised as "scheduled offences".

II) Trial of scheduled offences could be carried out by a senior judge, sitting alone in a tribunal.

III) Bail in scheduled cases to be given by the High Court only if stringent precautions were taken.

IV) The period of detention by police of a suspected terrorist could be extended to 72 hours from the usual 24 hours.

Proscription
In view of our urgent need to fight the so-called religious militancy we may consider if the element of proscription could be a prominent feature of the proposed anti-terrorism legislation. Membership of a proscribed organisation could be a punishable offence although the power to proscribe has been associated with fears that it infringes on the rights of freedom of association and expression. Therefore, the definition of a proscribed organisation should be clear and precise with the objective of targeting the group instead of becoming just an executive tool.

The United States government probably attaches maximum importance to proscription. Their Terrorism Prevention Act empowers the secretary of state to designate a terrorist organisation. The purpose of the power is to sap a terrorist organisation of its material base, stopping routes of material replenishment and seizing its existing assets. Can we think of incorporating administrative and legal measures along this line in our proposed terrorism legislation?

Intercepting communications
Interception of communications has been found to be an essential tool to the collection of intelligence about terrorist organisations. The strategy is to collect evidence to charge terrorists who plan and direct terrorist activities but do not actually execute them. In UK where lawful interception of communication has been allowed this apparent invasive provision in 1996 and 1997 played a crucial part in securing
* 1200 arrests
* Seizure of 450 firearms
* Seizure of nearly three tons of class A drugs and 112 tons of other drugs, worth over $800 million.

We may, therefore, consider using intercepted material as evidence in those cases only that are terrorism related. The point to note is that an intelligent use of information culled through intercepts is essential to building a case against terrorism.

The executive layer of interception, if approved, could be at the level of Superintendent of Police and equivalent. We could also think of ordering the interception by a judge to keep suspicions above board.

Arrest and detention
Our proposed legislation may think of expanding the powers of arrest for the police with a view to enhancing the pre-emptive element in combating terrorism. In other words, the police may have to be given an opportunity to act against suspects under surveillance instead of waiting for the surveillance to reach fruition before actually carrying out the arrest.

In order to minimise misuse of powers of arrest, there should be adequate judicial scrutiny to prevent law-enforcers turning into law-breakers. It is true that anti-terrorism laws are in a sense emergency provisions but that should not warrant an obfuscation of the legal process.

It is up to the wisdom and ingenuity of the government to turn proposals into real, enforceable acts. Let us not forget that while the terrorism threat is painfully real, the other reality of our enforcers not experiencing sudden qualitative change with respect to skill and attitude should not be lost sight of. There is no debate now whether we need an anti-terrorism law. The question and concern relate to the details of what shape such a law should take.

We can possibly emulate some aspects of anti-terrorist laws of western democracies, in particular that of UK. These relate to procedural matters such as the norms for the collection of evidence, powers of arrest and detention and proscription. However, we should not be in favour of lifting entire parts of foreign law because neither is the context the same nor the degree of sensitisation of those who are meant to enforce the law.

Muhammad Nurul Huda is a former Secretary and IGP.