The agitated citizens, along with harried law enforcement personnel and worried executives, may think that the recent incidents of terrorism are, at least partly, a consequence of weak laws. Or the ineffective implementation of existing laws? So, if laws were strengthened, and, maybe, made more matter-of-fact, is there a possibility that it might result in more contraventions of human rights in our situation?

There is a view gaining currency that ordinary laws and a normal criminal justice system have failed to cope with terrorism. At times, this failure is not attributed to corruption or inefficiency of law enforcing machinery, but to a weakness of law based on principles of liberal jurisprudence and notions of natural justice.

The reference is to principles like the right to equal treatment before law, the right to a fair trial, and right to be deemed innocent until proven guilty beyond reasonable doubt. Therefore, if the legal remedy is to be effective in dealing with terrorists, it can only do so if the aforementioned principles are overturned, and rights are taken away. This may not be an acceptable alternative in a democratic polity.

The issue of terrorism and human rights has befuddled even the United Nations, and has been a subject of debate wherever militancy, including the so-called religious type, has taken place. In this regard, there have often been disagreements between the governments and human rights organisations.

The governments of the affected countries have on occasions made it clear that there cannot be an across the board guarantee of human rights to all, irrespective of the means they in turn use to achieve their ends, or whether they respect the human rights of a community.

The terrorists of contemporary Bangladesh, whether they are of the so-called Sarbahara type or bigoted militants, have to be seen in above light. While one may have profound respect for those who are fighting for protection of human rights, one cannot countenance a situation where all human rights are reserved for perpetrators of terrorism, while the governments dealing with the menace are arraigned regularly on grounds of violation of human rights. What is needed now is to delineate the parameters that harmonise the defence of the values of a democratic polity with the respect for human rights.

While any government's intent should not be doubted, there is always some apprehension about the efficacy and salutary impact of tougher legislations. Past experiences in independent Bangladesh, and even during Pakistan times, lend credence to such premonitions.

There is cause for worry now, when we live in a perilously polarised polity, where even national level politicians are not on talking terms. Added to that is the lamentable deterioration in the operational standards of regulatory outfits. Quite often we hear vociferous complaints of highhandedness and motivated actions of the investigative and preventive units from public figures.

It is in the backdrop of such a scenario that one has to be cautious about probable indiscriminate use of intended draconian laws. This is not unusual because, while the proposed law may serve the so-called political strategy of a political party, the suspected human rights violations will undoubtedly blacken the democratic credentials of our polity.

Coming to specifics, one has to say that the process of identifying a terrorist should be discreet and transparent, and administrative and enforcement efforts should be geared towards that. In this regard, special precaution has to be taken so that our politicians do not remain under a pernicious impression that interpretation of terrorism laws is their personal turf.

One must not be oblivious of the fact that even a very prudently crafted law may have loopholes, and can be used against innocents and political opponents. In respect of tough laws, it is not uncommon in our situation to see a political party in power adopting a hawkish line, and then turning into doubting Thomases while out of power.

Citizens of Bangladesh would be happy if the present acts of terrorism do not get the benefit of being treated as political violence. This is natural because bigoted elements are undermining our pluralistic civil society, thereby having adverse consequences on the economic and social development.

There has to be a dividing line between mindless violence and violence aimed at a larger purpose. Our proposed law should aim at removing the possibility of subversive activity cloaking itself as "conflicting ideology."

Since terrorists in Bangladesh have the objective of spreading fear and alarm, and want to gain concessions, our lawmakers should appreciate the logic of separating an act of violence from its so-called political context, because our intention will be to criminalize a certain mode of political expression.

We must be able to reject the right to legitimise violence as part of a larger socio-religious movement. At the same time, it has to be ensured that every criminal is not given a terrorist label only to set in motion the expected stringent provisions of proposed terrorism legislation; because every terrorist may be a criminal, every criminal cannot be a terrorist.

The rationale of a tougher law entailing discrimination between terrorists and ordinary criminals is that bigots in our country have mercilessly killed the poor, public officials, security personnel, and a host of other innocent and defenceless people. No one can deny these stark facts by adopting an ostrich-like attitude, completely ignoring the manifest danger.

Some ambiguity stems from the use of ideology to justify acts of terror. The terrorist groups now use a careful mix of ideology and violence to achieve their ends. Clearly, there are instances where use of ideology has been an alibi. Our legislators should be able to ensure that acts of terror are divorced from the context, and we should look at terrorism as any act that tries to disrupt attempts at reconciliation.

First of all, we must be clear about the foreground, background and history relating to the issue of trying to tackle terrorism legally, since existing laws have failed. The UK experience tells us that the main obstacle in dealing with terrorists in ordinary courts was the intimidation of jurors and witnesses by terrorist organisations. Therefore, we may consider if:

• All terrorist type offences could be categorised as "scheduled offences."
• Trial of scheduled offences could be carried out by a senior judge, sitting alone in a tribunal.
• Bail in scheduled cases to be given by the High Court only, if stringent precautions were taken.
• The period of detention by police of a suspected terrorist could be extended to 72 hours from the usual 24 hours.

In view of our urgent need to fight the so-called religious militancy we may consider if the element of proscription could be a prominent feature of the proposed anti-terrorism legislation. Membership of a proscribed organisation could be a punishable offence, although the power to proscribe has been associated with fears that it infringes on the rights of freedom of association and expression. Therefore, definition of a proscribed organisation should be clear and precise, with the objective of targeting the group instead of becoming just an executive tool.

The United States government probably attaches maximum importance to proscription. Their Terrorism Prevention Act empowers the secretary of state to designate a terrorist organisation. The purpose of the power is to sap a terrorist organisation of its material base, stop routes of material replenishment and seize its existing assets. Can we think of incorporating administrative and legal measures along this line in our proposed terrorism legislation?

Interception of communications has been found to be an essential tool for the collection of intelligence about terrorist organisations. The strategy is to collect evidence to charge terrorists who plan and direct terrorist activities, but do not actually execute them. In UK, where lawful interception of communication has been allowed, this apparent invasive provision in 1996 and 1997 played a crucial part in securing --1200 arrests; seizure of 450 firearms; seizure of nearly three tons of class A drugs and 112 tons of other drugs, worth over $800 million.

We may, therefore, consider using intercepted material as evidence in those cases only that are terrorism related. The point to note is that intelligent use of information culled through intercepts is essential in building a case against terrorism.

The executive layer of interception, if approved, could be at the level of Superintendent of Police and equivalent. We could also think of ordering the interception by a judge to keep things above board.

Our proposed legislation may think of expanding the powers of arrest for the police with a view to enhancing the pre-emptive element in combating terrorism. In other words, the police may have to be given an opportunity to act against suspects under surveillance, instead of waiting for surveillance to reach fruition before actually carrying out the arrest.

In order to minimise misuse of powers of arrest, there should be adequate judicial scrutiny to prevent law-enforcers turning into law-breakers. It is true that anti-terrorism laws are, in a sense, emergency provisions, but that should not warrant an obfuscation of legal process.

It is up to the wisdom and ingenuity of the government to turn proposals into real, enforceable acts. Let us not forget that while the terrorism threat is painfully real, the other reality of our enforcers not experiencing sudden qualitative change with respect to skill and attitude should not be lost sight of. There is no debate now about whether we need an anti-terrorism law. The question and concern relate to the details of what shape such a law should take.

Finally, 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 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 a manifestly reactive community cannot start behaving in a phlegmatic manner overnight.

Muhammad Nurul Huda is a DS columnist.