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Terrorism, historians & literary feuds

Terrorism, historians & literary feuds

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.

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