Fighting terrorism : Enforcement challenges

Muhammad Nurul Huda

While terrorists are lying low for the present, may be for tactical reasons, the threat of terrorism to our admittedly pluralist society has by no means decreased. Realists continue to impress upon the imperative of devising an all-pervasive counter-terrorism strategy for tackling the menace. A non-government think-tank has in the recent past prepared a counter-terrorism strategy after considerable deliberations and has drawn the attention of appropriate quarters for embarking upon the required course of action.

Framing and enacting an appropriate terrorism-related legislation is one part of the counter terrorism strategy. In Bangladesh, we have an enabling legislation in this regard. Enacting such legislation is no easy task, particularly in the background of the absence of a universally accepted definition of terrorism.

One has to remember that a law that affects every single citizen may provide the executive a draconian alternative to the existing penal and criminal procedure code and may even infringe on the right to information and thus must be accompanied by a wider public debate. The debate should dwell on the details of the ramifications of such a law.

The problem of defining terrorism remains fundamentally unresolved even in the United States. Much of the ambiguity stems from the use of ideology to justify acts of terror. Terrorist groups conveniently use a mix of ideology and violence to achieve their ends. One considered view is that acts of terror should be divorced from context and that terrorism may be seen as disruptive efforts against social reconciliation and stabilization.

In the absence of a global framework, domestic legislation has to be the legal remedy against terrorism. Taking into view our context and the degree of sensitization of our law enforcers, it may be time to benefit from the British law on terrorism.

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 British Terrorism Act, 2000 draws up a list of 'proscribed organizations' 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.

Photo: Amirul Rajiv

It is interesting to note how the British Home Office expanded the concept of a proscribed organization 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 organization, 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?

In Bangladesh's context, the British strategy seems appropriate because there is perhaps a need to reject the right to legitimize 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 law should be able 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.

Experiences at home and abroad indicate that the main obstacle to dealing with terrorists in ordinary courts is the intimidation of complainants and witnesses by terrorist organization. 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 internationally 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 terrorism law, if any, by the executive and the judiciary should be minimum. This is nnso 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 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 organization has addressed can be arrested. Needless to mention such powers may infringe, on the rights of freedom of association and expression.

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.

Interception of communications is essential to the collection of intelligence about terrorist organizations. 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 have 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 authorization of interception at Superintendent or equivalent level. In France and Spain an investigation judge can order interception.

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.

In Bangladesh now that we know the identity of many terrorists and their manifest objectives, we have got to act swiftly and smartly. In the first place we should be ready to accept some loss of liberty and freedom. The goal, however, should be to ensure that the security forces have every assistance in their task of bringing terrorists before the courts and that the integrity of the legal system is maintained. Incidentally, one has to bear in mind that legal antidote alone can not help win the battle against terrorism and that a political remedy perhaps merits greater attention.

A dispassionate analysis of our so-called religious terrorism will most likely convince a concerned citizen about the urgent necessity of apprehending and trying these fringe elements of our society who are by admission, declaration and overt activities, unrepentant evil-doers. Their organization need to be under strict watch and their material base has to be sapped along with stopping of the routes of their financial replenishment and seizing their existing assets.

The government is certainly aware that our terrorism law will be subject to scrutiny by international covenants to which Bangladesh is a signatory. The political parties and the civil society have to get together on the subject and devise ways to deal with terrorism in its current manifestation. Let us remember that polemics will not be enough to contain and minimize the threats posed to our democratic society by the terrorists of different descriptions.

The author is a former Inspector General of Police and a columnist of the Daily Star.