Would GUJCOC inhibit the Growth of Terrorism

Anti-Terror Laws

 

Would GUJCOC inhibit the Growth of Terrorism?

(Mukul Sinha)

 

Opening Remark: The word terrorism in the modern times is really a gift from the American establishment after the 9/11 attack in NY that led to collapse of the world trade building. Be that as it may, without entering into the realities of these events, we restrict ourselves to the laws against terrorism that proliferated after the 9/11 incident.

 

 The USA PATRIOT Act, commonly known as the Patriot Act, is a controversial Act of Congress that U.S. President George W Bush signed into law on October 26, 2001. The contrived acronym stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" (Public LawPub.L. 107-56).The following were some of the salient provisions of the Act which would indicate that the primary intention was to intercept communication for the purpose of detection of conpiracy to commit terrorist act and prevent the same:

Title II sections that were to originally expire on December 31, 2005.

S. 201: Authority to intercept wire, oral, and electronic communications relating to terrorism.

S.202: Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.

S.203(b): Authority to share electronic, wire and oral interception information.

S. 204: Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications.

S. 206: Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

S.207: Duration of FISA surveillance of non-United States persons who are agents of a foreign power.

S. 209: Seizure of voice-mail messages pursuant to warrants.

S. 212: Emergency disclosure of electronic communications to protect life and limb.

S. 214: Pen register and trap and trace authority under FISA.

S.215: Access to records and other items under the Foreign Intelligence Surveillance Act.

S.217: Interception of computer trespasser communications.

S.218: Foreign intelligence information.

S.220: Nationwide service of search warrants for electronic evidence.

S.223: Civil liability for certain unauthorized disclosures.

S.225: Immunity for compliance with FISA wiretap

 Many of the act’s provisions were to sunset beginning with December 31, 2005, approximately 4 years after its passage. In the months preceding the sunset date, supporters of the act pushed to make its sunsetting provisions permanent, while critics sought to revise various sections to enhance civil liberty protections. In July 2005, the U.S. Senate passed a reauthorization bill with substantial changes to several sections of the act, while the House reauthorization bill kept most of the act’s original language. The two bills were then reconciled in a conference committee that was criticized by Senators from both the Republican and Democratic parties for ignoring civil liberty concerns.The bill, which removed most of the changes from the Senate version, passed Congress on March 2, 2006 and was signed into law by President George W. Bush on March 9, 2006.

 The recent increase of terrorism and the threats posed by it have led to a transformation of the traditional paradigm that aims at empowering governments with better and more efficient enforcement measures, even at the cost of restricting some human rights. Some changes in the Law Enforcement Paradigm have already been implemented in the UK, France, Spain, Canada, Australia, Isreal, India and the US:

• Extending administrative detention periods of terror-suspects without requiring legal oversight or indictments. 
• Limiting terror-suspects’ right to legal representation.
• Labeling as confidential the materials gathered in investigations against terror-suspects, thus limiting access to it.
• Relying on evidence that would otherwise have been inadmissible in normal legal procedures, and transferring terrorism cases to be tried by special courts or tribunals.

 In other countries (including Israel), governments have also taken measures to restrict the movement of terror-suspects, to use irregular interrogation methods and to inflict collective punishment (such as the destruction of homes or the expulsion of family members of terrorists) in order to fight terrorism more effectively.

The Terrorism Act 2000 is a current United Kingdom Act of Parliament, described as "an Act to make provision about terrorism; and to make temporary provision for Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the maintenance of order."

• The Prevention of Terrorism Act 2005 is intended to deal with the Law Lords’ ruling of 16 December 2004, that the detention without trial of nine foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with the European Convention on Human Rights. It was given Royal Assent on March 11, 2005. The Act allows the Home Secretary to impose "control orders" on people he suspects of involvement in terrorism, which in some cases may derogate (opt out) from human rights laws. In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The Act was described by Mr Justice Sullivan as an ‘affront to justice’. Amnesty International, Human Rights Watch, JUSTICE and Liberty have opposed it. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.

 

• The Terrorism Act 2006 increased the limit of pre-charge detention for terrorist suspects to 28-days after a rebellion by Labour MP’s. Originally, the Government, and Prime Minister Tony Blair, had pushed for a 90-day detention period, but this was reduced to 28-days after a vote in the House of Commons.

 A senior British Opposition figure has resigned in protest at  yesterday’s vote to allow terror suspects to be held for six weeks  without charge.

Shadow home secretary David Davis has resigned as an MP and will fight a by-election on the issue of the new 42-day terror detention limit.

The Conservative MP told reporters he felt he had to challenge what he called the insidious and relentless erosion of fundamental liberties under the Labour government.

• The Counter-Terrorism Bill 2008 is currently going before the UK Parliament, with a clause which aims to increase the limit of pre-charge detention for terrorism suspects to 42-days, however this is currently the subject of much controversy and on-going debate within UK politics. As of June 11, 2008, Prime Minister Gordon Brown narrowly won a House of Commons vote on extending the maximum time police can hold terror suspects to 42 days. The marginal decision, where nine Democratic Unionist MPs decided to vote with him resulting in a 315:306 majority sparked astonishing scenes in the House of Commons as furious Tory MPs shouted "traitors", "shame" and "you’ve been bought" at the Northern Ireland politicians sitting alongside them. It could thus transpire that Labour rebels and Unionists were bought off with future favours and inducements.

Australia

• Australian anti-terrorism legislation, 2004
• Australian Anti-Terrorism Act 2005

The Civil Rights Network opposes such legislation. Elizabeth Evatt, a federal judge, has criticized John Howard’s 2005 anti-terrorism bill, particularly provisions relating to control orders and preventive detention, saying that "These laws are striking at the most fundamental freedoms in our democracy in a most draconian way."

Canada

• Canadian Anti-Terrorism Act, 2001

India

• Terrorist and Disruptive Activities (Prevention) Act (1985-1995)
• Prevention of Terrorist Activities Act(2002-2004)

New Zealand

• Terrorism Suppression Act 2002

In all the above laws, while elaborate provisions were made for wiretapping, interception, etc, there were no provisions which made the “confession before a Police man” an admissible evidence under law except the Indian laws lke POTA, TADA and MOCOCA and now GUJCOC

 We may recall that the Rowlatt Act, enacted in 1919 by the Britishers. Also known as the Black Act, it vested the Viceroy’s government with extraordinary powers to quell sedition by silencing the press, detaining the political activists without trial, and arresting without warrant any individuals suspected of sedition or treason. Despite these black provisions, even this law did not make “confession before a Police man” an admissible evidence.

 We may now look at  a brief summary of the provisions of GUJCOC to see to what extent the Gujarat Governments claim can bear the scrutiny.

 

 Firstly, if we compare the definition of “organised crime” the new offence that has been defined in GUJCOC as well as MOCOCA, we will notice that the GUJCOC defintion does not contain the words “or any person promoting insurgency” which exists in MOCOCA. Without these few words, the offense as defined in GUJCOC does not remotely include any act of terrorism! We may ask: What is the real objective of GUJCOC? This law does not have anything to do with terrorism!

 

 Secondly, the President had returned the Bill to the Government on 16.2.2004. Thus it is the NDA Government thayt had not passed the GUJCOC in its original form! The President had suggested the deletion of sections 14,15 and 16 of the GUJCOC. These amendments were made in June, 2004 with seven more additional sections were deleted, namely, sections 17 to 22 and 24 to 25. Thus all provisions regarding interceptions of information, wiretapping were removed! The heart of the legal weapon to detect and prevent terrorism was completely removed.

 

 Thirdly, In the light of these changes, the amendement made in section 23 has to be interpreted which substituted the words “ “provisions of any other law” for the original words “provisions of the Act”. This change in section 23 meant that “interception of wire, electronic or oral communications” that were made admissible evidence, were to be collecetd under the provisions of “any other law” and NOT under GUJCOC. In June, 2004 the only other law that permitted wiretapping was POTA and therefore GUJCOC was borrowing the legal powers under POTA to make the amendment of section 23 of GUJCOC meaningful. But after the repeal of POTA in September 2004, how will the provision of section 23 of GUJCOC operate?? Gujarat Governemt has obviously not even thought of such ludicrous contradictions that exist in GUJCOC!

 

 Fourthly, assuming that GUJCOC is given the assent of the President, it will be useless since “terrorist acts” are not covered by GUJCOC. Further, as there is no provision left in GUJCOC to intercept wire, electronic or oral communication, the law is toothless to prevent terrorism and lastly, this being a criminal law, will not have retrospective effect.

 

 Lastly, let us ask, why does the Government want this useless piece of GUJCOC? As per the home ministers statement, he wants the provisons that make the confession before the police officer to become admissible evidence. This the real reason. Use third degree methods and twist all evidence! Such a provison should never made in any law since that will hamper all investigations and victimise the innocent.