Definitional significance
In drafting a law as mentioned above under the present circumstances obtaining the primary focus should be to reduce the risk of misuse. The Indian "Terrorist Affected Areas (Special Courts) Act 1984" has a very maximalist definition of terrorism when it defined a terrorist as "any person who indulges in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to

a) putting the public or any section of the public in fear;
b) adversely affecting the harmony between various religions, racial, language or regional groups or castes or communities;
c) coercing or overawing the government established by law;
d) endangering the sovereignty and integrity of India".

A definition as loose as in the above-mentioned act will surely allow its indiscriminate use by the security forces. In other words while such law may serve the so-called political strategy of a political party, the suspected human rights violations will undoubtedly blacken the democratic credentials of the government.

The Indian "Terrorist and Disruptive Activities Act, 1985" made a slight modification when it included an element of motive leading up to a terrorist act. The framers of this law believed that any attempt to "strike terror in the people or a section of the people" was in effect an act of terrorism. In other words, motive was to be read in the immediate impact of the act itself, not the reasoning behind it. This basic thrust of the definition of terrorism is also noticed in the Indian "Prevention of Terrorism Ordinance, 2001" which says

"a) whoever with intent to threaten the unity, integrity, security or sovereignty of India or any section of the people does any act or thing in such a manner as to cause or likely to cause both death or injury or detains any person or threatens to kill any person.

b) or is or continues to be a member of an association declared unlawful under the "Unlawful Activities (Prevention) Act commits a terrorist act."

One can see from the above that the definition of terrorism is expanded to 'an act of association' with a terrorist group. The idea is to include patrons and harbourers of terrorist groups and fringe supporters in the ambit of the anti-terrorist law. This element has been drawn from the British Terrorism Act, 2000 which draws up a list of 'proscribed organisations' to which membership, funding or open support within the territory of the UK is banned. This list is periodically reviewed, with an intention of making the fight against terrorism in line with threats to internal security.

It is interesting to note how the British Home Office expanded the concept of a proscribed organisation to make it applicable across the broadest spectrum. It is precise and unambiguous. It attempts to measure and list what acts would constitute 'support' to a banned organisation, something that was left to law enforcers so far. In all, it broadens the applicability but narrows the definition of terrorism itself.

What we may learn here is that the process of identifying a terrorist should be more discreet and transparent and that administrative and enforcement efforts should be geared towards that. The politicians must not be under a pernicious impression that interpretation of terrorism laws is their personal turf and the laws shall not be subjected to their personal prejudices and opinion.

Another area of concern that should seriously engage the attention of the lawmakers is whether and to what extent the religious, political or ideological activism can be set aside from terrorism, even if it has the same consequences. The core issue is: should motive define terrorism?

The defining characteristic of a terroristic act, according to a Chinese proverb, would be to "kill one, frighten ten thousand". The terrorist aims not merely at destruction but in driving home the massage of 'terror', because often 'terror' is the best way to spread word about a certain political ideology. As an expert very succinctly says that "the terrorist wants a lot of people watching rather than a lot of people dead."

Contemporary terrorism which uses violence and the threat of violence as an instrument to propagate its view and ideology cannot perhaps be treated as dissidence even if its roots are socio-political and governed by distinct and conflicting ideologies. There are, however, well-grounded fears that anti-terrorism laws might be used by vindictive governments to neutralise opponents. At the same time, there cannot be a debate in perpetuity to differentiate terrorist agenda from bearable noises and indiscretions.

The British Terrorism Act 2000 says, "Terrorism means the use or threat for the purpose of advancing a political, religious, or ideological cause, of action which

- involves serious violence against person or property;
- endangers the life of any person;
- creates a serious risk to the health or safety of the public or a section of the public;
- is designed seriously to interfere with or seriously disrupt an electronic system"

The Washington based RAND Foundation points to some indices on the basis of which terrorism can be defined. It talks of "an act of terrorism as a crime in the classic sense such as murder or kidnapping, albeit for political motive". It also says that "terrorism contains a psychological component -- it is aimed at people watching". Thus there appears to be a logic in separating an act of violence from its political context and thus criminalise a certain mode of political expression.

In Bangladesh's context, the above strategy seems appropriate because there is perhaps a need to reject the right to legitimise violence as part of a larger social movement.

The so-called disruptive activities must not be clubbed with terrorist activities although their differentiation is difficult from an enforcement point of view. Our proposed law should be such as to discriminate between terrorists and ordinary criminals.

The special law should not circumvent the criminal law. While every terrorist may be a criminal, every criminal cannot be a terrorist.

Working through the special law
Experiences at home and abroad indicate that the main obstacle to dealing with terrorists in ordinary courts is the intimidation of jurors and witnesses by terrorist organisation. The Northern Ireland (Emergency Provisions) Act, 1973 made provisions to deal specifically with terrorism, outside the purview of ordinary criminal law. The transgression of individual rights has to be a necessary compromise -- citizens would have to be willing to accept if they seek stable peace. However, there should be minimum deviation from international agreed principles and the hallowed traditions of jurisprudence. The integrity of the legal system has to be maintained while ensuring that the enforcement personnel receive reasonable assistance.

Experience suggests that the detention provisions of the proposed terrorism law, if any, by the executive and the judiciary should be minimum. This is so because the anti-terrorist measures throughout the world, more so in developing societies, have an addictive effect -- once introduced into the body politic it is difficult to contemplate giving them up.

The question, therefore, is whether terrorism needs a political remedy more than a legal antidote?

Proscription, as mentioned earlier, is central to the British attempt at fighting militancy. Under the British law, even a person who attends a meeting which a member of proscribed organisation has addressed can be arrested. Needless to mention such powers may infringe, on the rights of freedom of association and expression. And all these in the motherland of modern democracy.

In our situation, if we suffer from hazy and imprecise attempt at proscription and fail to accurately pinpoint the target group, we will only be empowering an already overbearing and less-than-sensitive executive.

The United States probably attaches maximum importance to proscription. The new Terrorism Prevention Act in the USA empowers the Secretary of state to designate foreign terrorist organisations. The purpose of the power is to sap a terrorist organisation of its material base stopping routes of material replenishment and seizing its existing assets. Can we think of similar measures on a limited scale, through the law, in so far as it relates to organisations suspected to be foreign funded?

To trap individual terrorists there could be an offence on the "preparation of terrorism". In the event of the preparation being at an advanced stage, material evidence can be used to arrest the person under existing offenses, such as the terrorist act, but the idea is to pre-empt such an act.

Interception
Interception of communications is essential to the collection of intelligence about terrorist organisations. The logic is to allow the government intrusive rights to collect evidence to charge terrorists who plan and direct terrorist activities. In UK the lawful interception of communication has been allowed for the last twenty years. There has been noteworthy achievements in UK through the use of interception law. However, interception carries with it the risk of creating a 'surveillance society'. It may, therefore, be appropriate to allow the use of intercepted material as evidence in only those cases that are terrorism related.

In our situation interception has undercover overtones but it may be noted that in countries having lower threat perceptions, interception has become a valuable tool in investigation. Whether we should change our mindset remains for consideration but the reality is that an intelligent use of the information culled through interception is essential to building a case against terrorism.

There is perhaps a need to treat intercepted evidence as material with authorisation of interception at superintendent or equivalent level. In France and Spain an investigation judge can order interception.

Power of arrest
The pre-emptive powers of arrest should not suffer from sheer misuse or ignorance. While the police should be given an opportunity to interview the suspect and launch enquiries to ascertain identity and making international enquiries and searching records, it should have time to undertake forensic arrests and search premises. The law must lay down so complex a set of rules that the law enforcers are careful not to transgress it. Failure may be treated as contempt of court.

One may have to be legally empowered to carry out what the Americans like to call "trawler operations" implying arrests carried out with a view to obtaining evidence, not following evidence.

The above does not detract from the reality that in the absence of judicial scrutiny, the law-enforcers very often may turn into law-breakers.

There should be sufficient courts with fixed time frames to dispose terrorism related cases. The superior judiciary including the apex court should be empowered to review. Our courts have been responsive to public concerns.

Last but not the least, the Ministry of Home Affairs must not rush through the proposed Act without the benefit of a national debate on the draft law. It should be possible for the government to draft a workable, less controversial and real enforceable legislation. We may be in a hurry because of objective conditions but an intellectual exercise of debating the delicate points of law is definitely desirable.

The government is certainly aware that our proposed terrorism law will be subject to scrutiny by international covenants to which Bangladesh is a signatory. The political adversaries have to get together on the subject and devise ways to deal with terrorism in its current manifestation. Let us remember that polemic will not heal and that a manifestly reactive community cannot start behaving in a phlegmatic manner overnight.

Muhammad Nurul Huda is former Secretary and Inspector General of Police.