Contempt of the Rule of Law

The Awami League led 9th Parliament passed a controversial amendment to a piece of legislation titled Anti-Terrorism (Amendment) Bill, 2013 in its budget session on June 11, 2013. Interestingly, the origin of this enactment Anti-Terrorism Ordinance, 2008 was also passed by the then army backed caretaker government cabinet on June 11, 2008. The Ordinance was first legitimised by the present government in 2009 and subsequently amended in 2012. In the present context, there is no doubt that we need an Anti-Terrorism law to combat issues of domestic and religious extremism as well as international terrorism. Nevertheless, legislators should bear in mind that this type of law needs checks and balances by which national interest and public interest will be protected simultaneously. However, the recently amended Anti-Terrorism Act (ATA) provides the law enforcing agencies with arbitrary sweeping powers to arrest, detain and punish anyone in the name of State security and eliminating all sorts of global terrorism.
The provisions of this current Act vests the executive with immense power to persecute dissenting voices, especially political oppositions, human rights defenders, trade unionists, journalists and other activists to ensure world peace, safety and security! The newly amended law evidently contravenes with individual liberties, fundamental tenets of rule of law, the basic spirit of our Constitution and core principles of due process of law. It is frightening to note that this “non-democratic” amendment has been hastily and surreptitiously passed by voice vote in our parliament, without proper scrutiny and public discussion.
The amended ATA provides an extensive and vague definition of terrorism. It could be used to criminalize a peaceful political dissent and other activities deemed legal by our constitution. In accordance with Sec.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 destroys any property and uses or keeps explosives, flammable objects, firearms or other chemicals to destroy the integrity, solidarity, security or sovereignty of Bangladesh. A person or entity would 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 - any body who commits any of the above mentioned acts in a Bangladeshi registered vessel or a national flag carrier, will also be liable under the Act.  Further, it has categorized property as moveable or immovable assets, or profits derived from the assets or negotiable instruments. Under the ATA property includes assets, both, within and outside of the country.
This enlarged definition of terrorism also includes acts that do not involve violence or injury to people, such as property crimes and interruption of public services. The United Nations special rapporteur on counter terrorism 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 crimes which are serious and heinous in nature. 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 characterisation 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 conversations, still photographs and videos, conversations posted by people and organisations on social media, i.e. Facebook, Twitter, Skype, Blogs, emails and allow those before court as evidence in trial against the user. Prior to this the Police could exercise this power in certain specific circumstances but it would have to be sanctioned by a judicial authority. But the draconian provisions under the ATA 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. This will ultimately make the public vulnerable to victimisation.
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. It could be utilised as a tool to seek revenge and punish an opponent by hacking his email or Facebook account. It is contrary to the existing laws regarding evidence, which does not allow such kinds of material as evidence in a court of law. Obviously, the legislature may modify present provisions of law of evidence to cope with contemporary technology. However, insertion of the above mentioned in a special legislation raise our suspicion and the obligatory nature to accept these as evidence without ensuring personal liberty only strengthens that suspicion.
Under the said ATA, police will now be able to commence investigations instantaneously into incidents and file a case against the alleged offender by merely informing the District Magistrate, (Sec. 40 of the ATA). The new amendment offers the Executive the authority to get involved with trial process, which infringes the notion of separation of powers between the Executive and the Judiciary. Despite Constitutional protections, members of the police and other law enforcing agencies have 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 ATA, government has the authority to forfeit offender's property, which is a complete violation of people's right to property guaranteed under Art. 42 of our Constitution and rule of law.  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 a maximum of 180 days (it was 60 days before the amendment) without court orders, which is per se against the principle of natural justice. The ATA also stipulates that the offence of financing acts of terrorism shall be punishable by not more than 20 years and a maximum fine of Taka 2 million and not less than 3 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, the nation does not know whether these conventions were placed before the lawmakers or parliamentary committee, which is a fundamental prerequisite to legitimise international conventions under the purview of the Constitution (Art. 145A). 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.
It is time we questioned the provisions in the amended ATA. Who will guarantee 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 a political weapon? It is essential for the elected leaders to keep in mind that they are only authorised to ensure public interest and preserve national security. They are not allowed to serve the purpose of any entity except the people of Bangladesh who have given them the mandate to protect them and their country's interest by voting them to power.

The writer is Senior Lecturer and Coordinator, Department of Law, Dhaka International University (DIU); He is also an Advocate, Rights Activist; and freelance writer.