Food for thought: Counter–Terrorism Act

The ‘Counter-Terrorism Act’ is a subject that remains focused on by all and sundry due to the horrendous happenings on Easter Sunday which shook the whole world – Pic by Shehan Gunasekara

There is an ongoing debate these days in the Parliament as well as among the interested circles in our country about the introduction of a new bill, the ‘Counter Terrorism Act,’ advocated by Prime Minister Ranil Wickremesinghe.

Naturally, the subject remains focused on by all and sundry due to the horrendous happenings on Easter Sunday which shook the whole world. The revelations made by the security forces deepen interest more and more because the country is reminded of an era that existed some years ago, which however was finally brought to a complete arrest and control by the previous Government.  

According to the disclosures, the current menace had been well spread with tentacles all over the country unlike the LTTE operations which remained confined to one demarcated area. Therefore, there is no doubt that the country has to positively engage in taking adequate satisfactory futuristic measures to root out all possibilities of any future uprising of this nature. But the consternations plunged in to by the concerned critics regarding the new proposal advocated by the PM appear to be justified in the context of certain crummy experiences the country is witnessing due to some of the hastily rushed pieces of legislation in the recent past under the Good Governance Government. 

It is ironical to note that the Parliamentarians who supported such legislation too are now complaining! Apparently they have been taken for a ride or subjected to some magical bewitching or seducing unwittingly. Be that as it may, the demand by many not to rush into things is not to be disregarded particularly over an issue that concerns the future security of the nation.

During a debate in parliament on the subject, the PM made a reference that some so-called legal experts who have not stepped into a court house even for a shelter (he said rain) are expressing contrary views! We cannot deny this because we know of many wearing the legal mantle unfamiliar with court work and who had not seen the inside of a court house after their swearing ceremonies. But it is irrelevant and immaterial because our Legislature can compri   se of even nincompoops! Because it is universal franchise that decides who should be there. Besides the involved banter and jest, the issue calls for an extremely careful assessment by at least others who are outside the Parliament, including those in and out of courts in sun or rain.

Is the country devoid of laws to prosecute offenders of gruesome crimes as the Easter Sunday carnage and those who aid and abet such?

Are our existing laws inadequate to deal with money-laundering, trafficking in persons, trafficking in arms and other forms of organised crime, all of which threaten national security and undermine sustainable development and the rule of law?

Have any of the recently-enacted laws such as the changing of the Exchange Control Act to a Foreign Exchange Act contributed towards the proliferation of external funding sources to promote terrorist activities?

Are we in a position to use the banking regulations currently in force to uncover any suspicious transactions connected to terrorist acts by any person?

Are we manipulated by any unseen foreign forces in the making of the new laws?

Should we rush through this process?

Have we as a country ratified and amended our national laws to include the provisions of international counter terrorism instruments (16 nos.), which help prevent terrorist acts and bring to justice those who commit them?

These are some of the speculations by those concerned. Should we not take into consideration these concerns in a matter that has serious future consequences? However clear it is to those who advocate the new proposals, democracy calls for just and fair representations and scrutiny by those who need clarifications. Democracy, good governance and often-quoted Lichchavism, all lead to the anticipated consultation and consensus. 

Definition of terrorism

It is important to have cognisance of a clear and internationally accepted classification and definition of terrorism. Laws can be made without any dispute or controversy only in such a background.

It is also an accepted fact that there is no universally agreed definition for terrorism. Legal systems of various governments use different definitions. Due to the fact that governments are charged with political and other interest factors they have been reluctant to formulate a legally binding definition. 

It has been pointed out that, “There are many reasons for the failure to achieve universal consensus regarding the definition of terrorism. In a briefing paper for the Australian Parliament, Angus Martyn stated that ‘[t]he international community has never succeeded in developing an accepted comprehensive definition of terrorism. During the 1970s and 1980s, the United Nations attempts to define the term foundered mainly due to differences of opinion between various members about the use of violence in the context of conflicts over national liberation and self-determination.’ These divergences have made it impossible to conclude a Comprehensive Convention on International Terrorism that incorporates a single, all-encompassing, legally binding, criminal-law definition of terrorism.”

However there have been general consensuses among relevant agencies on a commonly applicable theme which includes premeditated terrorist acts which are motivated by some political or social agenda. They have accepted that terrorists target non-combatants or civilians and are generally sub-national or clandestine groups. 

Since 1994, the United Nations General Assembly refers to terrorist acts using the following political description of terrorism: 

“Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.”

It is necessary to be familiar with five types of terrorisms identified;

 

• State-sponsored terrorism, which consists of terrorist acts on a state or government by a state or government.
• Dissent terrorism, which are terrorist groups which have rebelled against their government.
• Terrorists and the Left and Right, which are groups rooted in political ideology.
• Religious terrorism, which are terrorist groups which are extremely religiously motivated and
• Criminal terrorism, which are terrorist acts used to aid in crime and criminal profit.

Universal experiences in laws relating to terrorism

Going beyond all these is another extremely important area that should be thought through. That is the experiences of other countries in regard to introduction of laws following terrorist inflictions. While we do not entertain any doubts about the capability, responsibility and the sense of obligations of our legislators, members of the public too have a duty to address these issues in the national interest. Hence we wish to invite the attention of those involved in a debate to the following:

I wish to quote some relevant extracts from published material available for public perusal: “In addition to the devastating human cost of terrorism, in terms of lives lost or permanently altered, terrorist acts aim to destabilise governments and undermine economic and social development. In response to this threat, gradually over five decades of work, the international community has developed a common universal legal framework against terrorism. This framework is comprised of the 19 universal legal instruments against terrorism along with the relevant United Nations Security Council resolutions. The Security Council has addressed terrorism in a number of resolutions, and has imposed sanctions and established counter-terrorism related subsidiary bodies. It has also established the Counter-Terrorism Committee.”

Australian situation

Australia’s national security and terrorism laws aims to prevent acts of terrorism and prosecute those involved in terrorism. Effective laws are a critical component of Australia’s response to threatened or actual terrorist acts.

National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act)—This Act gives courts a structure to follow where national security information is disclosed, or is to be disclosed, in a legal proceeding.

Australia’s counter-terrorism laws—Responsibility for Australia’s counter terrorism laws are shared between the relevant department and the Department of Home Affairs. For the majority of counter terrorism laws, the Department of Home Affairs has policy responsibility and the relevant department has administrative responsibility.

Reviews of Australia’s counter-terrorism laws—These reviews ensure that people who carry out terrorism are brought to justice. They also contribute to the development of Australia’s legal response to the threat of terrorism.

Preventative detention orders— Police can detain people only where there is a threat of an imminent terrorist attack and the order might help prevent it, or immediately after a terrorist act if it is likely vital evidence will be lost. 

Control orders—These are protective measures that allow controls to be placed on the movements and activities of people who pose a terrorist risk to the community.

Urging violence and advocating terrorism offences—It is an offence to intentionally urge another person or group to use force or violence:

To overthrow the Constitution, government or lawful authority

or

Against a group, or members of a group that is distinguished by race, religion, nationality, national or ethnic origin or political opinion.

It is also an offence to counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence where the person intentionally engages in the conduct reckless as to whether another person will engage in a terrorist act or commit a terrorism offence.

Offences defined under the Terrorist Act

Australia brought the Following offences under the Criminal Code Act {1995}, in December 2014, by amending the Act;

Accordingly, Under Part 5.5 of the Australian Criminal Code, it is an offence to:

 

• Enter a foreign country with an intention to engage in a hostile activity, unless serving in or with the armed forces of the government of a foreign country 
• Prepare to enter, or for another person to enter, a foreign country with an intention to engage in a hostile activity
• Recruit persons to join an organisation engaged in hostile activities, or to serve in or with an armed force in a foreign country.
  
   

Nevertheless any person or group will be permitted by the Home Ministry, to serve with an armed force of a foreign country if it is in the interest of defence and international relations of Australia. 

If a person is found guilty of entering or preparing to enter a foreign country to engage in a hostile activity, the maximum penalty is life imprisonment. If a person is found guilty of recruiting a person to join an organisation engaged in hostile activities, the maximum penalty is 25 years imprisonment. The maximum penalty for the offence of recruiting persons to serve in or with an armed force of a foreign country is 10 years imprisonment.

The emphasised sections show the extent of the coverage of Australian laws. If a person is preparing to enter a foreign country for a hostile activity the penalty will be life imprisonment and recruiting a person to serve in any foreign armed force is also punishable.

Preventing the financing of terrorism

Financing of terrorism is another important area adequately covered under these laws. It has been declared illegal to finance terrorism under the Criminal Code Act described in detail as follows;

A person finances terrorism when they:

 

• Intentionally collect or provide money

And

 

• Are reckless about whether the money will be used to facilitate or engage in a terrorist act.
• It does not matter if;
• They provide or collect the money on behalf of someone else’
• The terrorist act does not happen
• The money will not be used for a specific terrorist act or for more than one terrorist act.
  
   

A person can be convicted according to Australian laws under the offence of financing terrorism if;

 

• They donate to charity and are aware there is a substantial risk that the donation will be used for terrorism purposes
  
   

and

• It is unjustifiable to take that risk in the circumstances, that person could be convicted of financing terrorism.
  
   

The Australian Transactions and Reports Analysis Centre (AUSTRAC), monitors bank accounts and the movement of money. It is also possible to have bank accounts frozen in Australia if the funds in such accounts belong to, or are derived from, a listed terrorist organisation.

The offences that come under the Terrorist Act are as follows;

It is a terrorist act offence to:

Commit a terrorist act

Plan or prepare for a terrorist act

Finance terrorism or a terrorist

Provide or receive training connected with terrorist acts

Possess things connected with terrorist acts

Collect or make documents likely to facilitate terrorist acts

A person may be convicted of a terrorist act offence if they:  

 

• Intend to commit one of these offences

or

• Were reckless as to whether their actions would amount to one of these offences
  
   

For example, someone may be found guilty of a terrorist act offence where they intentionally prepared or planned a terrorist act but did not actually commit it themselves.

A person may still commit a terrorist act offence even though a terrorist act did not occur.

A terrorist organisation is an organisation that:

 

• A court finds is directly or indirectly engaged in preparing, planning, assisting or fostering the doing of a terrorist act

or

 

• The government has listed as a terrorist organisation by regulations
  
   

With regard to terrorist organisations the Australian laws deal as follows;

An organisation advocates the doing of a terrorist act if it directly or indirectly:

 

• Counsels, promotes, encourages or urges the doing of a terrorist act
• Gives instruction on the doing of a terrorist act 
• Directly praises the doing of a terrorist act, where there is a substantial risk that this praise might lead someone to engage in a terrorist act
  
   

It is an offence to:

 

• Be a member of a terrorist organisation
• Direct the activities of one
• Recruit for one
• Train or receive training from, or participate in training with one
• Acquire funds for, from or to one
• Provide support to one
  
   

It is also an offence to associate with a listed terrorist organisation. Anyone guilty of terrorist organisation offences can face imprisonment for up to 25 years.

What is quoted above are extracts from published material available for reference by any one. This was done to focus the attention of those who are engaged in a battle/debate regarding the proposed new counter terrorism bill and seriously interested in the issue, as to how the matter has been addressed meticulously in other countries.

A law that encompasses all possible coverage within the scope will be of immense use to prevent, apprehend and punish all those who are debased with stains of terrorism offences, big and small.

As our laws are still in the process of being enacted, let its passage be well-lit with as much information as possible.

(The writer is a Council Member of the CMC.)