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Handle
this bill/act now
By
Gillian Lucky
gilly@tstt.net.tt
Based
on a recent report that a foreign country was allegedly disappointed
that the Opposition did not support the Anti-Terrorism Bill,
it is incumbent upon me to try to set the facts straight so
that residents and foreigners alike would not be hoodwinked
into the mistaken belief that the bill in its present form
was worthy of support.
Let it be understood that duty to country and therefore the
national interest must always be of paramount importance and
there must be no apology for a stand that is wholly consistent
with true patriotism. If laws that are flawed are allowed
to go unchecked, then those of us who can make the difference
would have failed to honour our oaths.
Last Saturday, the Centre for Criminology and Criminal Justice,
with its director Senator Prof Deosaran, hosted a public forum
on the anti-terrorism legislation. Permit me to commend the
organisers of the event including the project co-ordinator,
Ian Ramdhanie.
The fact that this centre provided an opportunity for free
and frank debate on a current and important topic means that
citizens were given the chance to learn about matters that
affect them. It is hoped that generous and continuous government
funding will enable the centre to continue the work of educating
the population.
The following is an extract from my contribution made at the
forum on the anti-terrorism legislation. It is hoped that
by reading this excerpt, more citizens would participate in
the discussion surrounding the bill which has already been
passed in the Lower House. (For the purpose of the Upper House,
the relevant legislation is accurately referred to as a bill
which contains clauses whereas it is referred to as an Act
comprising sections, having been passed in the Lower House.)
Terrorism is one of the threats against which all states must
protect their respective citizens. But states must also ensure
that in their fight against terrorism through legislation,
there is no unjust and unreasonable blocking or violation
of fundamental human rights and freedoms, and recognised humanitarian
standards. Any fight against terrorism is a fight to preserve
law and order and to ensure good and safe governance.
It is a fight for democracy and social justice and it must
be led in accordance with the law. The legislative initiatives,
however honourable their purpose, must be firmly founded in
law. Thus in defending the rule of law, we must ourselves
respect and be bound by the due process of law and the rules
of natural justice.
We must not allow the struggle against terrorism to become
a pretext for the suppression of legitimate opposition or
dissent to the policies and practices of any current regime.
The rights to national sovereignty cannot justify violation
of human rights or fundamental freedoms of law-abiding
citizens.
In this regard, let me state from the outset that in any legislative
attempt to fight terrorism, it is imperative that we get it
right from the start. It is a case of hit or miss and the
fall-back position of running to the Parliament to cure defects
which were obvious from the start is an approach unworthy
of contemplation.
When states violate human rights for short-sighted advantages
through the passage of flawed legislation, the winner will
always be the terrorists and the losers will always be the
law-abiding citizens.
It is therefore incumbent upon all of us today, to embark
upon open and frank deliberations and discussions that are
geared towards ensuring that the national interest is given
paramount importance. There must be no compromise, political
or otherwise, in our battle against terrorism.
We need an elaborate and stable structure and unity at all
levels if our fight against terrorism is to be effective.
This public forum has provided an opportunity for us to get
it right, for us to ask pertinent questions such as whether
the bill is open for abuse? Whether a special majority is
required? Whether the bill ought to be made the subject of
public comment and consultation before its passage in Parliament?
I hope that after my contribution I would have persuaded you,
at the very least, to re-consider some of the provisions in
the bill, some of which were similar to those in other territories
and which said provisions have been revisited, revised and
in some instances re-vamped, in order to ensure that fundamental
principals of law, justice and fairness prevailed.
Need for the special majority
According to Section 5 (1) of the Constitution, the fundamental
rights and freedoms of the people cannot be infringed unless
there is the required special majority. Section 4 of the Constitution
recognises and declares the existence of certain fundamental
rights including freedom of movement.
Clause 23 (1) of the bill which provides for the granting
of detention orders is an obvious restriction of a person’s
right to freedom of movement and so suggests that a special
majority is needed. Assuming but not admitting that the special
majority is required, the section is still deficient because
in sub-clause 4 which deals with the extension of time to
detain a person from 48 hours to a maximum of 14 days, nothing
is stated about the procedure to be applied when such extension
is sought.
Thus there is scope for abuse and if the flaw is not addressed,
a person detained under this provision would have a great
likelihood of success should a constitutional motion be brought.
Yet another section which raises
concern is clause 24 which deals with the power to gather
information.
Sub-clause (9) states:
“A
person shall not be excused from answering a question or producing
a document or thing on the ground that the answer, document
or thing may incriminate him or subject him to any penalty
or proceedings.”
This sub-section is a violation of the rule against self-incrimination
which said rule is specifically provided for in Section 5
(2) (d) of the Constitution. The subsequent sub-section in
the bill that prevents the use of the obtained information,
documents or evidence does not negate the need for the special
majority.
Clauses 32 and 33 of the bill provide for the duty to disclose
information relating to offences and terrorists acts. This
mandatory duty to disclose without more is not justifiable
in a democratic society.
Further, why must disclosure be made, as provided in clause
33 (1), to the minister? This involvement by the Executive
is a worrying development that is creeping into other aspects
of our legal system and which is a trend that ought to be
stopped with immediate effect!
This type of Executive interference in the investigative process
is not reasonably justifiable in a society that has a proper
respect for the rights and freedoms of the individual and
a great respect for the separation of powers. Thus one could
argue, as contemplated by Section 13 (1) of the Constitution,
that even if a special majority was obtained, this particular
section may be declared void.
The provisions dealing with the seizure and forfeiture of
terrorist property also suggest that a special majority is
required, after all, it deals with the depravation of property.
The Constitution provides that each person has the right to
enjoyment of property and not to be deprived thereof except
by due process of law.
Further, by virtue of clause 36 of the bill, which deals with
orders for seizure and restraint of property, the test is
that of “reasonable grounds” but in clause 37 of
the bill which provides for orders for forfeiture of property,
the more serious and permanent deprivation of the subject’s
property, the lower standard of “balance of probability”
is used.
Clearly this is an error, for it makes no sense. The test
for forfeiture should be “beyond all reasonable doubt.”
Conclusion
The Opposition is often accused of merely opposing legislation
and not making suggestions as to how legislation can be improved
or how the patent errors can be corrected. During the debate
in the Lower House on this bill, several suggestions were
made which included the following:
The immediate implementation of a comprehensive witness protection
programme which would offer security to people willing to
be informants but afraid for their personal security should
their identities be exposed.
The establishment of a specific anti-terrorism unit attached
either to the Office of the DPP reporting to the DPP or as
part of the Police Service reporting to the Commissioner of
Police to deal specifically with matters arising in the bill.
The removal of all provisions that provide for executive interference
in the conduct of the investigative and judicial process.
A frank disclosure to explain the Government’s position
that the bill does not require a special majority. Such a
meaningful disclosure as opposed to an assurance that legal
minds were consulted on the issue would ensure proper consideration
of the matter.
There are several other clauses in the bill which have been
highlighted that ought to be redrafted such as clause 3(2)
in which the mandatory imposition of the consecutive punishment
ought to be removed.
After the presentations by the various panelists, the audience
was invited to participate by making comments about the matters
raised or asking relevant questions.
One young woman asked me the reason for the apparent “back-biting”
and turmoil during parliamentary debate because as far as
she knew the process by which a bill becomes law is extremely
clear and caters for the concerns raised by the Opposition.
As was explained, citizens must appreciate that the present
lack of broadcast of parliamentary proceedings has prevented
the public from assessing the standard of debate and quality
of contributions from the opposing sides. Thankfully, this
matter has been addressed and soon the public will not be
left out of the loop.
Unless we are prepared as a nation to deal maturely, analytically
and objectively with the problems that confront us, there
will be no hope for our positive development.
When young people question, as they often do, why can’t
the politicians get together to get it right, it is important
that these young minds realise that it is the Government that
sits in the driver’s seat. The Opposition is merely a
passenger that is not always welcome to ride and in times
of conflict is usually tossed aside.
Such is the reality of the politics in a country that determines
the winner by the “first past the post” with no
regard for the other players who ran close behind.
Perhaps we too easily forget that should the winner be disqualified
because of foul play, the runner-up is looked upon as the
viable alternative. Sooner that we think another race will
be run and the criteria to determine the winner is unlikely
to change.
It is therefore time for all who intend to run the race to
the finish to prepare themselves, for the day the bell tolls
is near at hand.
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