Innovations and Practices

Respecting democracy and human rights while legislating counter-terrorism

Since 2001, the Commonwealth has witnessed the enactment of a significant number of anti-terrorism acts, and a vast majority of its member states now possess such a law. This rush has raised a number of issues: firstly, as to the aim of the act, and the adequacy or necessity to adopt an ad hoc law; and secondly, as to the compatibility of the act and its enactment process with the international standards of the rule of law, particularly human rights and democratic principles.

In responding to terrorism, often as the result of growing international pressure, states often turn to their legislators to enact anti-terrorism laws. In doing so, governments expect more than just a new piece of legislation, but rather a law that asserts their commitment in what some have referred to as the "global fight" against terrorism. In such a climate, the legislator is left juggling both political and legal considerations, sometimes in quite an unbalanced manner. And, while an ad hoc anti-terrorism law is an undoubtedly visible demonstration of a country's commitment to counter-terrorism, visibility does not always equate with efficiency. Alternative legislative avenues should be the primary consideration; assessing the adequacy of existing laws is the natural first step. While, at the international level, United Nations Security Council Resolution 1373 does stipulate that states must have adequate legislative provisions to counter terrorism and its financing, there is no legal obligation for the adoption of new laws, whether anti-terrorism or otherwise. After all, the adoption of quickly drafted and overlapping Acts, can turn out to be unproductive, creating an imbroglio of legislation, serving only to complicate the work of law enforcement authorities.

In many countries, the offending that is generally referred to as "terrorist activities" are already recognised as criminal offences under the penal code, or within general laws adopted to counter money laundering. For example, in most countries, kidnapping, hijacking, possession of explosives, and/or the membership or participation in a criminal association are prosecutable offences. In this regard, the duplication of such offences under specific anti-terrorism law only complicates the task of law enforcement bodies. If terrorism adds a specific dimension to the crime, then an aggravating clause of "acting as such for the purpose of terrorism" inserted in the criminal code could provide a workable solution. However, the duplicate of criminal activities under the auspices of anti-terrorism legislation can, beyond any foreseeable jurisprudential complication, endanger the fundamental human rights of individuals and society as a whole.

In practice, the enactment of ad hoc terrorism offences has often been coupled with a reduction of procedural guarantees. All too often such acts enhance police powers to stop and search, to use force, to arrest and detain without charges for extended periods, while reducing accountability. These powers, often militarised, extra, or increased, are usually only beneficial to the actual forces that employ them. Legislators must accordingly be mindful of ensuring that all new laws comply with fundamental democratic principles and requirements regarding both the process of adopting the law and its content - including respect for fundamental national and international laws, careful consideration, and wide consultation and careful review by expert committees. In practice, bills are often rushed through parliament justified through the pressing need to counter terrorism. This rush is obvious in countries such as Australia where the controversial Anti-terrorism Act (2005), was passed on a public holiday as a response to an imminent threat. Similarly, United Kingdom's Anti-Terrorism, Crime and Security Act (2001), was rushed through Parliament in less than a month and the later Prevention of Terrorism Act (2005), was adopted in a similar fashion. In Canada, the controversial Anti-Terrorism Bill C-36, was introduced 17 days after the UN Resolution 1373, and sped through the Parliament, adopted two weeks before its scheduled introduction. There are, however, countries that provide examples of good practice. New Zealand and South Africa have taken the time to discuss the development of acts with civil society, leading to reviews in the light of human rights principles.

The will of citizens in certain areas not to have strong anti-terrorism laws should not be disregarded either. Kenya has witnessed, alongside terrorism-related bombings during 1998 and 2002, its citizen's refusal to enact such legislation. Yet, international pressure has pushed the Government to repeatedly introduce anti-terrorism bills. Similarly, situations have been experienced in India where strong criticism from civil society about systemic police abuse of existing legislation has led to the repeal of an Act. Drastic counter-terrorism police powers granted by the Terrorist and Disruptive Activities Act (TADA) in India, were re-enacted in the subsequent Prevention of Terrorism Act (POTA). Despite the later repeal of POTA, many of its controversial provisions have unfortunately gone on to be reintroduced in India's main anti-terrorism law, the Unlawful Activities Prevention (Amendment) Act (UAPA).

To ensure compatibility with the ideals of democracy, the contents of anti-terrorism acts must promote the rule of law, and, in particular, human rights. Governments have a duty to counter terrorism, however, this cannot be conceivably achieved if the state response perpetuates fear, violates human rights standards and marginalises sections of the community. To be effective the powers such laws provide to police, must be appropriate, proportionate, accountable, humane, and in compliance with the standards set out in international law. Nevertheless, none of these steps can be taken until a carefully considered and widely adopted definition of terrorism is agreed upon.

In the end, it is not up for debate as to whether governments should be enabled by law to prevent human rights violations within their jurisdiction. It is, however, argued that governments should not violate human rights while doing so, as is the current case in certain anti-terrorism acts. At the sovereign level, governments are often bound by human rights principles, because, beyond their international commitments, such guarantees are also embodied constitutionally in order to prevent governments from abusing the powers their citizens have entrusted them with. After all, if in countering terrorism, states derogate their duty of protection, transgressing community freedom, violating individual rights to attain legal certainty, the actions of the state become difficult to discern from those methods employed by the very groups that such measures target.

Arnaud Chaltin
Programme Officer
Human Rights Advocacy Programme
Commonwealth Human Rights Initiative