Author: Soli. J. Sorabjee
Publication: The Times of India
Date: December 9, 2001
Discussions on terrorism, human
rights and POTO should bear n mind certain essentials. Firstly, the Security
Council Resolution adopted on November 12, 2001 which "reaffirms its unequivocal
condemnation of all acts, methods and practices of terrorism as criminal
and unjustifiable, regardless of their motivation, in all their forms and
manifestations, wherever and by whomever committed".
Secondly, that it is a damnable
heresy to justify cold-blooded massacre of innocent civilians as part of
"freedom struggle". Thirdly, the fundamental rationale of anti-terrorism
measures is to protect human rights and democracy, not to undermine democratic
values and subvert the Rule of Law.
Detention without trial is anathema
to the Rule of Law. However, in extraordinarily grave situations, it can
be tolerated as a necessary evil provided detention is not for an indefinite
period, there is an effective internal review mechanism and no exclusion
of judicial review. Curiously, our Constitution provides for preventive
detention in the Chapter on Fundamental Rights. The critical task is to
strike a fair balance between legitimate national security concerns and
fundamental freedoms, easier said than done.
The UK Anti-Terrorism Bill which
permits detention of suspected foreigners and their deportation coupled
with the omission of any effective review raises serious human rights concerns.
More disturbing is the Military Order issued by President Bush. Under this
order a non-citizen suspected of involvement in terrorism can be detained
for an indefinite period, review is by an executive body, there are severe
restriction on legal assistance, trial is before a military commission
whose proceedings will be in camera and whose judgment is not appealable.
No doubt, "the war on terrorism" has to be relentlessly waged but without
going overboard and in effect declaring war on the civil liberties of the
people. The Presidential order, when challenged, will be a test of the
vitality of the US Bill of Rights and the sensitivity of the Supreme Court
to human rights.
Mercifully, no such infirmities
disfigure POTO, which also is a necessary evil. The review committee is
presided over by a sitting or retired High Court judge, there is a right
of appeal to the High Court on facts and law, and no exclusion.
