Introduction: Democracies Need
to Strike Back
Author: Prakash Nanda
Publications: The Times of India
Dated: December 4, 2001
The Prevention of Terrorism Ordinance
(POTO) has predictably generated an uproar in this country, with Parliament
devoting considerable attention to the subject. Opposition parties say
that the "extraordinary provisions" in POTO have no place in a liberal.
democracy like India and that the existing laws are adequate to deal effectively
with the terrorists and subversive elements.
Are these criticisms justified?
No, judging by the examples of other leading democracies Post-September
11, many countries have adopted, or are planning to adopt, anti-terrorism
laws. In fact, even before the terrorist strikes, many democracies had
introduced "extraordinary laws" to deal with terrorist and subversive activities,
which, incidentally, are found more in democracies than in undemocratic
setups. According to a study in the journal Terrorism and Political Violence,
the likelihood of terrorist groups emerging in democracies is three-and-half
times more than in non-democracies.
Among the major democracies that
have adopted new anti-terrorism laws in addition to the existing ones during
last two months are the US, Canada, Great Britain " Japan. It may be noted
that before the Bush administration proposed a new set of anti-terrorist
laws to the Congress on September 24, there were at least five different
anti-terrorism laws already in force in the US. And the range and impact
of some of the proposed measures, particularly against the non-citizens,
are severe. So much so, columnist Wilham Safire recently described them
as 'dictatorial power" to replace "American rule of law with military kangaroo
courts".
Meanwhile the justice and home affairs
ministers of the European Union (EU) have approved draft proposals that
authorise the police agency, Europol, to close legal loopholes that allow
terror suspects to escape arrest, introduce a minimum 20-year jail sentence
for terrorist murders and set tough border controls, meaning the end of
open borders within the Union. It is understood that the 15 individual
EU countries will introduce laws accordingly by January next year. And
this will be in addition to the existing anti-terrorism laws in countries
such as Italy, France, Britain and Germany.
It is not out of context to point
out here that not many years ago many EU countries were harsh critics of
Britain for the various "extraordinary laws" it had introduced during the
'80s - for example, the Special Power Act, the Emergency Procedure Act
and the Prevention of Terrorism Act - to fight the insurgency in Northern
Ireland. In fact, so harsh were the measures that the Republic of Ireland
filed a cue with the European Commission on Human Rights on the grounds
that the laws were "draconian". And at least on three occasions, Britain
was found to have violated the European Convention on Human Rights.
That today all the EU countries
are, contemplating stem and fresh anti-terrorist measures through their
respective legislatures is only a reflection of the changing times. Even
the United Nations Security Council unanimously adopted on September 28
a wide-ranging anti-terrorism resolution aimed at suppressing the financial
strength of the terrorists and improving international cooperation. It
established a Committee of the Council to monitor the resolution's implementation
and called on all states to report on actions they had taken to that end
no later than 90 days (incidentally, POTO has been announced within these
90 days).
This apart, there are already existing
UN conventions on anti-terrorism: Convention Against the Taking of Hostages,
Convention for the Suppression of the Financing of Terrorism, Convention
for the Suppression of Terrorist Bombings, Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention),
Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention,
applying to hijackings), Convention on the Physical Protection of Nuclear
Material, and Protocol for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation etc.
What these examples prove is that
nations and organisations go for changes in their laws to fight terrorism
from time to time. There are many reasons why they do so, but three of
them are particularly noteworthy. First, modern terrorists are rich, web-qualified
and technologically very sophisticated, which means that the cannot be
convicted easily on ordinary, time-consuming laws with their checks and
balances. Secondly, and this is more important, technology has dramatically
outpaced the statutes of most of the countries. For instance, law-enforcement
tools created decades ago were crafted for rotary telephones - not e-mail,
the Internet, mobile communications and voice mail. These are now antiquated
in the fight against the terrorists whose communication system is based
on multiple cell phones and computer networks - communications that are
also carded by multiple telecommunications providers located in different
jurisdictions. In other words, what one is witnessing these days is new
kind of war, which calls for greater efficiency both in intelligence gathering
and in the technological ability of the law enforcement to trace the communications
of terrorists.
Thirdly, though by its very nature,
any extraordinary or anti-terrorism law is bound to affect some "individual
rights" - such as liberty of the individual, privacy, autonomy and freedom
among others - sometimes their being invoked is necessitated for "public
welfare". All told, terrorist attacks are, fundamentally, an assault not
on individuals or on the liberty of individuals, but on the security and
welfare of the people as a whole. And since the fight against terrorism
is not a normal fight, one has to appreciate the need to transcend the
excessive individualism that the blind champions of human rights suggest.
It is incumbent on citizens to realise that for the common good, they will
not be able to do everything they want to do, whenever and wherever they
like and under conditions that only they can dictate. Instead, they will
have to think of the good of the community, and, indeed, of the nation,
as a whole.
All this is not to suggest that
anti-terrorism laws are absolute in themselves. There must he adequate
safe-guards and conditional clauses against state-sponsored oppression
of the ordinary people. There should always be a certain measure of balance
and fairness between national security and civil liberties. Viewed thus,
POTO is not an evil idea when the world is fighting the Taliban and Osama
bin Laden, the very forces who along with their other promoters openly
declare India to be one of their foremost enemies. What is required is
an agreement between the government and the opposition on adequate safeguard-clauses,
and furthermore, on making POTO a sunset law by placing a time limit after
which it will automatically expire.
