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PUCL Bulletin, 2007

Terrorist laws and and the war on terror

-- By K. G Kannabiran

We are celebrating a hundred years of the concept of Satyagraha, which we practiced tardily during the freedom movement and those that practiced did not fiercely believe in the concept as Gandhiji did, for they knew that they were likely to be the power wielders and their faith in the concept could only be a short term strategy than an article of faith.

When Gandhiji started his defiant non-violent protest against the racist South African regime, lethal force was the monopoly of state power and individuals and groups could not command sufficient lethal force to either confront or hold out against the violent assault by the State and its minions. 11th September was the day a hundred years back and that was against British imperialism in South Africa to begin with. He brought to politics a new approach which lays emphasis on ethical relationship between means and ends, a debate, which he commenced with Tolstoy, and the latter’s use of passive resistance was transformed into Satyagraha a concept with insurgent potentialities.

A hundred years later on the same day in the month of September 2001 Osama Bin Ladin as an act of defiance of the Super Power embarked on the unprecedented attack on the world trade center by ramming fuel filled planes on to the twin towers of the World Trade Center which led to horrendous deaths of quite a few thousand trapped in the towers. In an interview to the CNN in the year 1997 he said: The US Government has committed acts that are extremely unjust, hideous and criminal through its support of the Israeli occupation of Palestine. Due to its subordination to the Jews, the arrogance of the United States have reached a point that they have occupied Arabia, the holiest place of the Muslims. For this and other acts of aggression and injustices, we have declared jihad against the United States.” Some described this as “morally Neanderthal pursuit of this strain of jihad”. What is to be noticed is the qualitative transformation of politics and war. A handful of terrorists were able to humiliate the most powerful nation in the world.

Both were acts of defiance. One gave the world the concept of Satyagraha, non-violent protest against Imperial domination and the other terrorism as an act of defiance against impervious entrenched power and authority, hegemonic or otherwise.

Against both acts of defiance the response of the State is the same. Gandhiji’s non-cooperation and civil disobedience movement were countered by extensive arrests and by the introduction of a repressive legal structure. Independent India proudly uses these very laws for dealing with democratic protests. The impervious Indian Leviathan invited, by its own governance terror as acts of defiance and pronouncedly after 9/11 at the prompting of US has been passing terrorist laws again and again.

While Gandhi’s legacy may not have much relevance to running a government, was the latter abiding by the Constitution or has it adopted the dual character of the British policy of criminal justice system? In dealing with terrorism the new form of defiance, which does shake ones faith in public tranquility, special laws are enacted with special procedures, special evidentiary rules which makes the Indian Penal Code look very liberal.

This is what we can call the Rowlatt tradition. After terrorism this is the tradition which has occupied the center stage of all legal and political debate in the world of Anglo Saxon jurisprudence.

The war on terror was politically declared on 9/11 but officially commenced on 9/12/’94 when the United Nations General Assembly passed Resolution 49/60 delineating the measures to eliminate all forms of Terrorism. The Resolution recalled the Principles of International Law concerning Friendly Relations and Cooperation in accordance with the Charter of the United Nations, and goes on to refer to various other Resolutions including International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. The reference to the last two Covenants is to assure the World Public opinion that rights ensured by these Covenants will not be trampled upon and that this War on Terror shall not impede the forces of social change. Pursuant to this, a solemn declaration was made containing twelve clauses divided into three sections simultaneously.

One of the clauses calls upon the member states “to fulfill obligations under the Charter of the UN and other provisions of International law with respect to combating international terrorism and are urged to take effective and resolute measures in accordance with relevant provisions of International law and international standards of human rights for the speedy and final elimination of international terrorism.” The resolution itself is very cleverly worded. It refers to the international standard and not according to the Covenants or the clauses in the Declaration of Human Rights. If we work out among various member countries the average respect for human rights the result will haunt us with pessimism and the prospect of a better world will appear very bleak.

After the attempt at destroying the Ram Temple located in the disputed site by same terrorists, who were immediately shot by the security forces Terrorism has again occupied the center stage replacing the ongoing peace process. This was followed by blasts in Varanasi, trains in Mumbai and the latest being Malegaon in Maharashtra. Along with Advani, who considers himself the author of POTA, Arun Jetley and other important leaders and the electronic are feeling the absence of effective terrorist laws to counter the onslaught by terrorists. They accused the UPA of hastily repealing the POTA of which the National Democratic alliance was the architect. Congress is the holding company of Indian parliamentary politics. They were the persons who authored the first terrorist legislation. Terrorism is no longer the nation’s field of legislation. It is a Directive from the United Nations International that directives have to be fitted into the scheme of adversarial power play. There was an election promise that POTA will be repealed by the UPA, and therefore enacted a law to repeal POTA with a saving clause providing for review of all pending cases under POTA. No terrorist law was introduced while repealing POTA, which was not the usual the legislative practice. Such a course would have invited vociferous adverse criticism and the alliance would have cut a sorry figure. After some time lag an existing law was amended to introduce the terrorist provisions. They verbatim copied Chapter II to VI of the POTA into Chapter IV to VII of the Unlawful Activities (Prevention) Act 1967 by amending the long title by adding after the word “association” the words “for dealing with terrorist activities’. By plagiarizing POTA they gain the advantage of avoiding litigation about the constitutional validity of the law. There is no intellectual property right in law making.

Nor is there any freedom for nations in law making in this uni-polar world after 9/11 and after we joined US in the War on Terrorism. By choosing to be with US we have surrendered our legislative independence and there is a necessity to resurrect our legislative and policy decision making process from the thralldom of Western hegemonic dominance.

It would be interesting to study the steady erosion of the objectives of the UN. It is necessary to advert to Article (1) of the United Nations Charter: “To maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of peace, and bring about by peaceful means, in conformity with the principles of justice and international law, or adjustment or settlement or situation which may lead to breach of peace”. We also believe that peace is a collective human right of societies in the world.

Then came the United Nations Millennium Declaration, which not only reiterated the continuing faith in the Charter with promises to improve and democratize the functioning of the World Body and its principal ancillaries. Special provision is made to strengthening the UN. The Heads of State met between 6 & 8 September 2000. The States gathered there affirmed their faith in the Charter expressed their resolve to establish lasting peace all over the world and support all efforts to uphold the sovereign equality of all states, respect for their territorial integrity and political independence, resolution of all disputes by peaceful means and in comity with principles of justice etc.

And then came the attack on the twin towers on 9/11 and thereafter the scene shifted to the Security Council and from that date to 15/1/2002 around 20 resolutions were passed to justify and for preemptive ratification of US large scale intervention into the territories of other states. The event of 9/11 itself beggars description and analysis. As Jean Baudrillard describes it “With attack on the World Trade Center in New York, we might even be said to have before us the absolute event, the mother of all events, the pure event uniting within itself all the events that have ever taken place” The event disrupted, as he points out, the play between history and power. The tragedy also brought about rejoicings from people who were suffering from the violence generated all over the world by the hegemonic US interventions, Gore Vidal, the writer, has recorded 200 armed interventions all over the globe between 1948 to 2002 resulting in quite a huge loss of life in all these interventions. This Hegemonic power was rendered totally helpless by at the most 18 individuals with their hijacked planes felled twin towers and the victory march of globalization overnight had to change its tune to one of self-defense and defending its democratic faith.

The War on Terrorism is unlike all the wars preceding it. There were wars for imperial acquisitions; then there were ideological wars and then we experienced the Cold War, which led ultimately to the collapse of the Communist systems in the world and in this process what is called a uni-polar world led by the United States emerged and for a long time it was believed that there is no state tall enough to contest the hegemony of the US and its satellites. This belief and assumption was rudely disturbed on 9/11. The terrorist attack on 7/7 and later on 21/7 on London again informed us the character of the declared war on terrorism. There is a qualitative change in this war in which all of us are engaged in. All conventions regulating the conduct of war were rendered at one stroke null and void. This war does not respect territorial integrity or the sovereignty of nations. The invasion of alien territory is not out of disrespect of sovereignty but it is in search a wanted terrorist(s).

It is asserted that there are only two options. Either you are with the US and fight the terrorist or you are with the terrorist. In search of Osama Afghanistan was almost bombed out of existence. This is the battle cry after 9/11. This war not only erases the territorial boundaries which define the sovereignty of states, but this war brings abut a change in our understanding of the concept of sovereignty. This war on terrorism is forcing a change in our criminal legal structure and this specter is leading us to terrorize ourselves, by introducing statutes, which looks upon Rule of Law as inconvenient to carry on this war. As happened in London on 7/7 an angry and frenzied police force would pump bullets into an innocent person and the angry protest would lead to a half-hearted apology for an act, which is hardly qualitatively different from the act of the terrorists. The state of continued belligerence will be toward the Muslim population around the world and they will be marked as suspects and in all further attacks the articulate among them will be rounded up. The state of war that comes into existence will be genocidal and for the present the Muslims as a religious community will continue to be targeted. We need not look at it as the United States presented it to the world. We need not approve of Huntingdon’s thesis that what we are witnessing is a clash of civilizations. Almost all public utility services are privatized. State is distancing itself slowly but surely from peoples problems and therefore from the people. The World Bank or the US stipulates legislation. Foreign policy decisions by the Government are taken under dictation or in consultation with the US. If FDI role is made unrestricted the picture will be complete.

When we entered our era of independence we were confronted with the Cold War and the nations of the world were presented with the choice of either to be with the Western bloc or the Soviet Bloc. On 9 December 1958 Pandit Nehru who played a leading role in enunciating the policy of nonalignment and for campaigning for it set down what it meant “It is said that there are only two ways of action in the world today, and that one must take this way or that. I repudiate this attitude of mind. If we accept that there are two ways, then we have to join the Cold War – if not an actual military bloc, at least a mental military bloc. I do not see why the possession of great armed might or great financial power should necessarily lead to right decisions or a right mental outlook. The fact that I have got the atom bomb with me does not make me any the more intelligent, wiser or more peaceful than I otherwise might have been. I say this with all respect to the great countries. But I am not prepared even as an individual, much less as a Foreign Minister of this country to give up my right to independent judgment to anybody else in other countries. This is the essence of our policy.”

We have after the collapse of the Soviet Union what emerged was the US domination and the general indebtedness of the governments of all the countries to the International Financial Institutions, mainly funded by the USA. We are politically emasculated and therefore unable to chalk out an independent line for ourselves. The United Nations, as it is constituted is unequal in its representative capacities as also in terms of power relationship inter se. To make the UN more responsive and democratic seems to be impossible. The broad objective of the Charter and the Declaration of Human Rights remain rhetoric because many of the members of the World Body are themselves not democracies and many have very weak claims to represent its people. There is the added difficulty of restructuring the Body by reforms for the power to bring about amendments for restructuring the Body can be vetoed by one or the other members of the Security Council. The United Nations is entrusted with three tasks. Two of these are inter national responsibilities. To mediate between states with opposing interests and the second is to restrain the members from violating the rights of its citizens. These tasks have been imperfectly performed. The third task that has been assigned to this Body is the global responsibility to represent the common interests of all the people of the world. It is equipped to discharge the first of its aforementioned obligation. In context of Terrorism it is the global responsibility to ensure peace and security to all the peoples of the world. The existing institutions set up by the UN will have to be innovatively used.

The General Assembly comprising of 186 member states should undertake the responsibility of chalking a ‘way out’ of this ‘either/or’ impasse. This responsibility the member state should undertake in the General Assembly defying the Security Council, if necessary and set out an independent approach to the problem posed by the Terrorists. Such an approach would enable the General Assembly or the collective of the member states who are gathered in the United Nations keep the channels for a dialogue with them open. Octavio Paz, sees history as dialogue. Yet time and time again this dialogue has been broken off, drowned out by the din of violence or interrupted by the monologue of ranting leaders. Violence exacerbates differences and keeps both parties from speaking and hearing; monologue denies the existence of the other; dialogue allows differences to remain yet at the same time creates an area in which the areas of otherness coexist and interweave. Since dialogues eliminate the ultimate, it is a denial of absolutes and their despotic pretensions to totality: we are relative, and what we say and hear is relative. But this relativism is not surrender: in order for there to be dialogue, we must affirm what we are and at the same time recognize the other in all his irreducible difference. Dialogue keeps us from denying ourselves and from denying the humanity of our adversary.”

Perhaps terrorist violence is the only way left to people to fight hegemonic power whether it be Western or Islamic. Later, whether it be domestic or international. To dismiss them as criminals or people having ambition to proselytize the world to Islam appears to be an unfounded inference. It may still be possible to hold a dialogue with terror. One sure method appears to be of holding a dialogue is, to hold a dialogue with the people whom it assumes to represent and shall for the moment call them its constituency. We should dialogue with the constituency, the terrorist assumes he represents and that can be done only when we accord them an equal status. allow them the growth, we are fighting to acquire for ourselves, if we make them feel that they are participating partners in the socio-economic processes they will grow in the main stream as intellectuals as academics as entrepreneurs. All these years we have not allowed “the other people” the space to grow in the main stream and so they grew into Dawood Ibrahim, Tiger Memon, Chota Shakeel and the like of them in various gradations. Relieve them of the reason to turn (to) terrorist and try to build up a plural society where equality reigns in all walks and all facets of life. Penal statutes cannot remedy social imbalances. Despite the presence of penal laws social imbalances trigger political turbulence and intelligent governance consists in addressing the reasons for these social imbalances.

Books Referred:
Select documents on India’s Foreign Policy and Relations Vol. I: The Age of Consent-Manifesto for a New World Order – George Monbiot; Octavia Paz – One Earth, Four or Five Worlds; Law Relating to Terrorism – Dr Surat Singh & Hemraj Singh

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014