Anti-Terrorism Act: Great Illustration of Contempt of Rule of Law

The AWAMI League led 9th parliament passed a controversial amendment of a piece of legislation titled Anti-Terrorism (Amendment) Bill, 2013 in its current last budget session on 11 June. Interestingly, the origin of this enactment Anti-Terrorism Ordinance, 2008 was also passed by the then army backed caretaker government cabinet on 11 June 2008. The Ordinance was firstly legitimize by the present government in 2009 and subsequently amended in 2012. In present context, there is no doubt that we need an Anti-Terrorism law to combat domestic violence and religious extremists as well as international terrorists. Nevertheless, legislator should borne in mind that this type of law needs check and balance by which national interest and public interest will be protected simultaneously. However, recently amended Anti-Terrorism Act (hereinafter referred as ATA) provides arbitrary sweeping powers of arrest, detention and punish to law enforcing agencies for the sake of State security and eliminating all sorts of global terrorism.

The provisions of this Act currently unlock a floodgate for the executive to persecute dissenting voices especially political oppositions, human rights defenders, trade unionists, journalists and other activists to ensure world peace, safety & security! Nevertheless, the newly amended law evidently contravenes with individual liberties, fundamental tenets of rule of law, basic spirit of our blood earn Constitution and core principles of due process of law. However, it is frightening that this non-democratic amendment has been passed by voice vote in our parliament hastily as well as surreptitiously without proper scrutiny and public discussion.

The amended ATA provides tremendously extensive and vague definition of terrorism, which could be used to criminalize peaceful political dissent and other legal activities. In accordance with S. 6 of the mentioned Act, a person or entity will be regarded as terrorist if that person or entity commits murder or injures, detains or kidnaps others or destroy any property and uses or keeps explosives, flammable objects, firearms or other chemicals to destroy the integrity, solidarity, security or sovereignty of Bangladesh and a person or entity should also be held guilty for terrorism if he commits offences or aids to commit offences in any other country by using the territory of Bangladesh. The definition will also cover extra territory of Bangladesh; that mean if any body commits any of the mentioned acts in a Bangladeshi registered vessel or national flag carried airplane, he will also be liable under the Act.  Further, it categorized property as moveable or immovable assets or profits derived from the assets or negotiable instruments. The ATA considered property both in and out of the country.

This enlarge definition of terrorism consists of acts that do not involve violence or injury to people, such as property crimes and interruption of public services. On the contrary, the United Nations special rapporteur on counterterrorism and human rights has affirmed that the concept of terrorism should be limited to acts committed with the intention of causing death or serious bodily injury, or the taking of hostages, and should not include property crimes. In addition, inserting death penalty for property crimes would obliterate the requirement under international law that death penalty only be executed for serious nature crimes. Moreover, the principle is also enshrined in Art. 15 of the International Covenant on Civil and Political Rights (ICCPR), 1966 of which Bangladesh is a signatory State.

By this extensive characterization a non-violent march, which blocked traffic could qualify as a terrorist act, subjecting protestors to at least 3 years to life in prison, or possibly even the death penalty. Furthermore, an individual need only “threaten to commit” any of the relevant acts, including property crimes, to be prosecuted as a terrorist and punished with aforementioned punishment. Interestingly, the amended law has the provision for death penalty in case an accused harms or tries to harm a foreign State whereas the penalty is life imprisonment in case of harming or trying to harm Bangladesh under the Penal Code, 1860.

Sec. 21 of the Anti-Terrorism (Amendment) Bill, 2013 empowers Police, RAB and other law enforcement agencies to record video, still photographs and conversations posted by people and organizations on social and communication media, i.e. Facebook, Twitter, Skype, Blogs, emails and allow those before court as evidence in trial against the user. Police could have this power in some specific circumstances but the power should be authorized by judicial authority. But existing horrific power will give law enforcers blanket power to trample on people’s rights to privacy, which is guaranteed as fundamental right in Art. 43 of the constitution, which ultimately making the public vulnerable to victimization.

The provision is also inconsistent with the spirit of Art. 35 of the Supreme law of the land. Moreover, this section could be abused by the state mechanism to hamper free flow of information and repress right to freedom of thought and conscience, and of speech, guaranteed by Art. 39 of the Supreme Charter of the land. Consequently, it could be utilized as funny tool to take revenge and punish opponent by hacking his email or facebook account. In addition, it annihilate ordinary rule of existing law of evidence, which does not allow such kinds of material as evidence in a court of law. Obviously, legislature may modify present provisions of law of evidence to cope up with contemporary technology. However, instead of current law of evidence, insertion of these abovementioned in a special legislation arise suspicion. Moreover, obligatory nature to accept these as evidence without ensuring personal liberty strengthens that suspicion. 

Under the said ATA, police will now be able to commence investigations instantaneously into incidents and file case against alleged offender by merely informing the matter to District Magistrate, says Sec. 40 of the ATA. New amendment offers executive authority to involve with trial process, which infringes the notion of separation of powers by inviting executive body into judicial function. Despite Constitutional protections, police and armed forces have long been implicated in arbitrary arrest, detention, torture and other maltreatment of persons in custody. In addition, under this Act now Magistrates cannot exercise their due role, as they have to conduct the trial proceedings as per the recommendations of the police.

In addition, as per Sec. 34 of the said law government has the authority to forfeit offender’s property, which is complete violation of people’s right to property guaranteed under Art. 42 of our Constitution & rule of law. Because, apart from court, exercising such power creates fear of confiscation of property among the people.  The ATA contains that a person may be held criminally liable for financing terrorism if that person is involved in financial transactions for which there is merely a “reasonable suspicion” that the money will be used to fund any terrorist act. More than a dozen of entities in addition to the banks, known as reporting agencies, will come under direct purview of the Bangladesh Bank as per the new law in its effort to deal with the suspected banks accounts.

The altered enactment would permit the central bank to freeze any suspected bank account for maximum 180 days, which was 60 days earlier than the amendment without court orders, which is in per se against the principle of natural justice. The ATA also stipulated that the offence of financing acts of terrorism shall be punishable by not more than 20 years and maximum fine of Taka 2 million and not less than three years of imprisonment. According to S. 2 of the Anti-Terrorism (Amendment) Bill, 2013; all transactions e.g. manual, electronic or digital, will fall under the authorities’ scanner and they can present cheques, money orders, pay orders, demand drafts and telegraphic transfers as evidence of alleged crimes.

The law also includes nine international conventions to restrain terrorism in its schedule. More interestingly, nation does not know whether these conventions were placed before the lawmakers or parliamentary committee, which is a fundamental prerequisite to legitimize international conventions under the purview of the Constitution (Art. 145A). Hence, inhabitants of this soil are deprived from knowing the contents of these conventions. The schedule of the amended ATA comprises Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the UN General Assembly on December 14, 1973; International Convention against the Taking of Hostages, adopted by the UN General Assembly on December 17, 1979; Convention on the Physical Protection of Nuclear Material; Protocol for the Suppression of Unlawful Acts of Violence at Airports serving International Civil Aviation; Convention for the Suppression of Unlawful Acts against Safety and Maritime Navigation; Convention for the Suppression of Terrorist Bombings, adopted by the UN General Assembly on December 15, 1997 etc.

Now it will time to ask some question against the amended ATA that who will guaranteed the citizens of this land that the legislation would not enforce to fortify “State sponsored” terrorism? Who will assure us that the enactment will not be used as political weapon? This new whimsical law will only bolster the oppressive hand of current and future governments. It is essential for the elected ruler to keep in mind that they are only authorized to ensure public interest, uphold integrity, and preserve national security. They are not allowed to serve the purpose of any entity except the people of Bangladesh who gave them the mandate of protection of their interest and benefit of the country by voting them. Because, the mass people of this soil know the techniques of withdrawal of their mandate very well and also know how to eject their representatives from powers.
Published in The Daily Star Magazine at P. 35 on 28.06.2013