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When Terror Strikes

When Terror Strikes

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.

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