Straight Line
On mindful application of anti-terror law
THE advisory council has reportedly approved the draft anti-terror ordinance. It is, therefore, a matter of time by which the long-awaited anti-terror legislation becomes a reality. Events in the country and the neighbourhood have convinced many that gone are the days when the need of anti-terrorism law was questioned.
The issue now is the details of what shape such a law should take. This is welcome development because a surreptitiously crafted law can have only divisive impact.
It would be relevant to recollect at this point that the incidents of 9/11 facilitated the easy passage of US Anti-Terrorism Act of 2001 because normally citizens and lawmakers there are almost fanatic about privacy and related issues such as constitutional safeguards for individual liberties.
However, the huge change in attitude can be seen in the law that legitimises the use of technology as a "neutral standard in intelligence gathering", giving the government absolute powers to monitor private communications and access personal information.
We have to remember that in the absence of a global framework, domestic legislation remains the only legal remedy against terrorism. In fact, procedural matters such as the norms for the collection of evidence, powers of arrest and detention, and proscription can have a significant impact on the fight against terrorism.
The anti-terror law is likely to affect every citizen and provide the executive a near permanent alternative to the existing penal and criminal procedure code and might also infringe on the right to information. In this regard we have to remember that an extraordinary situation calls for an extraordinary law and that it would not be logical to say, that we cannot have a draconian law because it is liable to be misused.
What in fact we must have is internal structures and safeguards against possible use and abuse of the legislation. There cannot be an arrangement with enough power to answer legitimate needs and at the same time appear incapable of committing mischief. One has to remember that there cannot be an across the board guarantee of human rights to all, irrespective of the means they in turn use to achieve their ends, or whether they respect the human rights of others.
We cannot countenance a situation where all the human rights are reserved for the practitioners of terrorism, while the authority shall be routinely arraigned for real or imaginary violation of human rights. The need is to delineate the parameters that harmonise the defense of national integrity with the respect for human rights.
In the application of the anti-terror legislation it has to be amply clear that the interpretation of the law does not become the personal turf of a political party and is not subject to personal prejudices or opinion. In other words it has to be ensured that unscrupulous or vindictive governments to neutralise opponents do not use the law.
The law enforcers under effective supervision should be able to remove the possibility of subversive activity cloaking itself as ideology. There is logic in separating an act of terrorism from its socio-political context in order to criminalise a certain mode of political expression. The right to legitimise violence as part of a larger social movement has to be denied.
While applying the law one must be able to avoid the unnecessary clubbing of disruptive activity with terrorist activity. This is necessary because while every terrorist may be a criminal, every criminal is not a terrorist. One has to remember that there is an inherent subjective element in the implementation of even the most precise, narrow definition of terrorism.
Our government should make sustained efforts to de-link terrorism from political offences so that enforcement measures become stricter and more narrowly focused. The goal should be to get a political consensus on domestic anti-terrorism law.
In order for our anti-terror law to produce results, extradition process should be profitably used. One has to remember that the success or failure of extradition as an instrument of tackling terrorism remains mired in the political wills of the governments concerned. Therefore, the fight against transnational crimes and cross-border offences would demand skillful diplomatic efforts from our foreign office. In sum, if there is a will, concerned governments can narrow down the definition of a political offence to make extradition of terrorists quicker.
To ensure successful application of the anti-terror law, the aspect of intimidation of jurors and witnesses has to be firmly tackled. Similarly, as a preventive measure, suspected terrorist organisations should be subjected to proscription. Without doubt, the effort to proscribe, if carried out seriously and earnestly, could be a central element at fighting militancy. Simultaneously, a terrorist organisation should be sapped of its material base, their existing assets should be seized and their routes of material replenishment stopped.
Interception of communications should be treated as essential to the collection of intelligence about terrorist organisations. The government has to be allowed some intrusive rights to collect evidence to charge terrorists who plan and direct terrorist activities. Interception has already become a valuable tool in criminal investigation. Confronted with evidence of intercept evidence, even tough terrorists plead guilty.
Regarding powers of arrests there is a need to enhance the pre-emptive element in combating terrorism. There is often a need to act against suspects without waiting for complete proof. At the same time there should be a complex set of restraining rules so that arresting officers are careful not to transgress it.
There is a need to skim powers of arrest and make the period of detention without trial much shorter. The power of judicial scrutiny should be generally retained. Intercept evidence should be admissible in court, by suitable amendments as the case may be.
We have to remember that any anti-terror legislation would necessitate some loss of liberty and human freedom. Therefore, the transgression of individual rights is a necessary compromise citizens should be willing to accept if we seek lasting peace. However, it has to be ensured that our anti-terror legislation will depart as little as possible from internationally recognised principles and from the traditions of natural justice.
The aim should be to guarantee that security forces have required assistance in their task of bringing terrorists before the courts and the integrity of the legal system is maintained.
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