Counter-Terrorism Laws: Transgressing Human Rights in the Name of Security of the State

Security of individuals is of an utmost importance, and governments have a fundamental obligation to protect their citizens and to ensure their safety. Over the past two decades, terrorism has affected virtually all parts of the world, disrupting human life, jeopardising peace and security, and threatening social and economic development of countries.Therefore, counter-terrorism law shave been formulated by states around the world to prevent terrorism within their jurisdiction.However, these laws have led to gross human rights violations by way of excessive powers vested in the government as well as the police and the administration. The Office of the UN High Commissioner for Human Rights, in its Factsheet stated that derogation of human rights provisions could only be made under exceptional circumstances.For example, the exercise of certain rights can be legitimately limited by the States, including the right to freedom of expression, the right to freedom of association and assembly, the right to freedom of movement. Such limitations, however, may precisely be formulated and may be for the purpose of combating terrorism and not for any other offences. Yet, democracies of the world such asIndia, the United Kingdom (UK), Japan, France, Spain and numerous other states continue to curb dissent and commit human rights violations in the guise of counter-terrorism laws.

First, the most long-standing counter-terrorism legislation in India is the Unlawful Activities (Prevention) Act (UAPA), enacted in 1967. This legislation remains with no sunset clause, which isa legal provision that provides for the expiry of a law or part of a law at a later date, and it is considered to be a safeguard against such laws. Due to the exceptional nature of counter-terrorism laws, a sunset clause becomes extremely important as it enables the parliament to debate the provisions of such laws and whether they should be renewed. It is critical that it has been more than half a century of the enactment of the UAPA, and it remains without a sunset clause.

The 2008 Amendment on the UAPA gives the government the power to declare organisations as “unlawful associations” for a period of five years if they commit “unlawful activities”, including “disclaiming” or “questioning” the territorial integrity of India which cause “disaffection” against India. Even a membership to such“unlawful associations” is an offence, punishable under the UAPA with up to two years of imprisonment. The broad wording of the provision gives the government unbridled power to invoke the law with no objective guidelines as to who constitutes a terrorist under the Act.

The Act creates a presumption of guilt on the basis of alleged and unproven association with unlawful organisations and complicity. This leads to the burden of proof falling on the accused party to prove their innocence. It is important to note that presumption of innocence in criminal offences is a non-derogable right under the International Covenant on Civil and Political Rights, i.e. a right which cannot be suspended even in a state of emergency. It is also an international human right under Article 11(1) of the Universal Declaration of Human Rights.Further, the 2008Amendment authorises pre-charge detentions of 180 days, along with police detention of up to 30 days. The bail provisions also presume guilt and courts can grant bail only if there is no prima facie case against the accused party. An example of the misuse of the UAPA and its flagrant human rights violations may be the arrest and subsequent conviction of Delhi University’s Professor GN Saibaba. Saibaba, a 90% disabled man and a vocal human rights defender, was sentenced to life imprisonment based on claims that he has links with one of the 128 organisations banned under the UAPA without any credible evidence against him.

Second, the UK faces similar problems with its counter-terrorism laws. The definition of ‘terrorism’ under the Terrorism Act, 2000 is dangerously broad, which applies to action taken to advance any political, religious, racial or ideological cause designed to influence the government of any country or international organisation. Also, the Terrorism Act 2006 criminalises statements likely to be understood as ‘encouraging terrorism’, which includes every statement that ‘glorifies the commission or preparation of such acts of terrorism.’ Another example of the wide provisions in the legislation is Schedule 7 of the Terrorism Act, 2000,a broad and intrusive provision which allows police officials to stop, search and hold individuals at airports, seaports and international railway stations.This power can be exercised by the police without any reasonable suspicion of involvement in terrorism, and the person held can be detained for up to nine hours, with no right to remain silent. Pre-charge detention of 14 day is also allowed under the Act. In an appeal judgement, the Court ruled that Schedule 7 is incompatible with Article 10 (freedom of expression) of the European Convention on Human Rights. It was of the opinion that the existing provision itself needs to be altered.

Third, the new anti-terror laws introduced in France ending its two-year long state of emergency allow members of the government rather than judges to approve the confinement of individuals to their hometowns and require them to report to police once a day. It also gives the police the authority to carry out stop-and-search operations, a measure that can potentially lead to harassment of religious and ethnic minorities. Fionnuala Ni Aolain who is the Special Rapporteur on the protection of human rights while countering terrorism, expressed her concern over the new law and how it may stigmatise and further marginalise Muslim citizens. She believes that “It is deeply concerning that the Muslim minority community is being constructed as a per se ‘suspect community’ through the sustained and broad application of a counter-terrorism law.” She highlighted that there were insufficient checks and balances in place to protect the rights of people subject to administrative measures. She further noted that the scope of these measures constitutes a de facto state of qualified emergency in ordinary French law.

Fourth, the new Japanese anti-terror conspiracy law, a bill that previously failed three times, was pushed through the upper house as PM Shinzo Abe circumvented ordinary legislative procedure to pass the Bill. The most concerning provision of the Bill, which weakens the civil rights, is the criminalisation of the plotting and committing of 277 acts, amending an existing law against organised crime syndicates. The Bill allows for the inclusion of offences ranging from cutting a wire fence on a construction site to copying music and avoiding payment of consumption tax to be characterised as “anti-state activities”. The government’s defence is that the law will not be applicable to innocent individuals as it targets ‘organised criminal groups.’ However, this claim falls flat, owing to the ambiguity attached to the procedure of demarcating such ‘groups’, as there is no clause in the Act which defines ‘organised criminal groups.’ When Justice Minister Katsutoshi Kaneda was questioned during the legislative process, he said that: “the law would also apply to ordinary groups that have become criminal in some way. If a group turns criminal, its members cease to be ordinary people.

Further, the definition of ‘organised criminal groups’ is not clearly limited to activities that would constitute organised crime or pose a genuine threat to national security.  Such an overly broad and vague definition of could legitimise surveillance over work of independent Non-Governmental Organizations (NGOs)   by considering them to be acting against governmental interests.  The UN Special Rapporteur on the Right to Privacy, Joseph Cannataci, expressed his concern over this new Bill, stating that the Bill in its current form could lead to legal uncertainty due to the potentially broad interpretation of its subjective and vague concepts. This law is being compared to the Peace Prevention Law enacted in Japan in 1925, which led to the creation of the country’s infamous thought police which effectively monitored and criminalised any deviation from prescribed thinking There have also been widespread protests in Japan opposing the passing of the Bill, as Japanese citizens feared that the law could be used as a tool for mass surveillance.

Moreover, there are a number of other countries committing such violations. The Canadian Government’s anti-terrorism Bill C-51 (2015) expanded the powers of the Canadian Security Intelligence Service to monitor online activities of their citizens.Additionally, the Bill allows private information to legally be shared among 17 different government agencies, including institutions that hold a tremendous amount of personal information about Canadians, such as the Canada Revenue Agency, the Department of Citizenship and Immigration and the Department of Health. The enabling of significantly greater internal sharing of information among government institutions may exert a chilling effect on freedom of expression.

Further, experts have raised concerns over the counter-terrorism laws in Spain as well. Amnesty International, in its report titled ‘Tweet..if you dare’, tracks the increasing use of vaguely worded counter-terrorism laws in the country. These laws could be used by the government to restrict freedom of speech and expression of the citizens.The arrests ofa 23-year old filmmaker,Alex Garcia, anda University student,Cassandra Vera, are a few examples of the law being used to target and curb dissent.

States are increasingly adopting overly broad and ambiguous special lawswhich have the force to circumvent ordinary procedures and thus, jeopardise the fundamental rights of the people. Consequently, it has become more critical than ever to implement safeguards against such laws and work towards adopting measures that respect human rights. The United Nations General Assembly, in adopting its “Global Counter-Terrorism Strategy” reaffirmed that “the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognizing that effective counterterrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.”