Governments taking liberties
Public opinion reportedly supports government positions. Observers in the United States note that this in part is due to warnings of more attacks, while the 'control freakery and spin' in the United Kingdom alert the public of possible attacks at Christmas - something which could not be verified by the Home Secretary's office itself.
East or west, north or south, governments are players in the same field although some governments think they cannot be as bad as Third World-ers. We have judicial review, they say.
The Third World-ers think that their preventive detention laws are worth emulation elsewhere. We told you so, they say.
There may even be pride that there is no need to fashion new laws. Apparently all we need are a couple of changes here and there to take into account 'modern-day terrorism'. Nobody knows what these changes are.
This line of thinking allows the Internal Security Act and other similar restrictive laws, a new lease of life. We are substituting terrorism for communist insurgency.
Local reports even record the jubilation of local elites who thought that for once we have done a first with the rest of the world doing catch-up.
Over the Dec 10 Human Rights Day celebrations weekend, I nearly fell off my chair listening to activists protesting that the anti-terrorist laws in other countries are not used against their own citizens. Was I the only one thinking that there were shades of xenophobia in that statement?
And anyway other countries closer to home have been terrorising their own people for years under various national security laws. These are not emergency laws either.
Patriot Act
The US Patriot Act signed by President Bush at the end of October has got civil libertarians seeking to reframe its agenda. While there are sunset clauses that will expire in 2005 (unless renewed by Congress), these safeguards do not apply to ongoing investigations post-Sept 11.
What US human rights groups lost in Congress, they are trying to air in their law courts and reform public opinion. A case has been filed against the US Justice Department under the Freedom of Information Act.
The plaintiffs, which included the Centre for National Security Studies, the Electronic Privacy Information Centre and 17 other groups (including media groups) are seeking information on more than 1,000 individuals arrested or detained after Sept 11..
The American Civil Liberties Union (ACLU) is not convinced that the failure to prevent the catastrophe on Sept 11 was because of inadequate investigative powers. The ACLU thinks that it is the ineffective use of existing powers which is to be blamed.
John Ashcroft, the US attorney-general managed to field questions from the Senate last Thursday on an executive order he advised the president to sign, creating military tribunals to try any non-US citizen suspected of aiding terrorism. The presidential order allows the death penalty to be imposed on a vote of two-thirds of the presiding military officers.
Ashcroft informed the Senate that he is not the proper person to direct questions on the military courts as the matter is not within the purview of the Justice Department.
No checks and balances
Two weeks ago, Mary Robinson, the United Nations human rights chief, had said that the new US measures are circumventing the system of checks and balances of a democratic society.
UK is expected to have its Anti-Terrorism Crime and Security Bill in the statute book this weekend. Concerned Britons have compared the new law to the internment policy of the 1970s when suspected terrorists in Northern Ireland, mostly Brits, were held for years without trial.
But the new law is reportedly presented by David Blunkett, the home secretary, as a weapon against foreign terrorists.
The passage of the UK bill through the Commons and the House of Lords were covered extensively in the British press with numerous comments. The House of Lords returned the bill to the Commons, emasculating the new offence of incitement to religious hatred as this was seen as a threat to speech and robust theological discussion. The offer that the AG would issue guidelines on prosecution of this new offence was thrown out
The Lords insisted on judicial review of (indefinite) detentions and have accepted a compromise of review by a special immigration appeals committee upgraded into a higher court of record.
The law would be reviewed after two years. Observers continue to warn the loss of freedom. Once in place, the act will be impossible to shift. If it is a bad law, promising to review it later does not make it good, argues the Independent.
Civil society protests
Canada's Bill C-3 had more than 100 witnesses representing minority groups, the legal profession and police testifying before the commons committee and a special senate committee. Some civil society groups have also organised sit-ins at the office of the justice minister, Anne McLellan.
Human rights groups have trouble with who is a terrorist under C-36. There is nothing in the bill, say observers to distinguish between Nelson Mandela, who is now an honorary Canadian citizen and a terrorist.
There are concerns that peaceful civil disobedience, raucous protests, advocacy, political dissent, stoppage of work or picket lines would fall prey to this law.
Anti-globalisation activists planning to stage protests in June 2002 when the Group of Eight meet in Alberta, fear they could be tried under language which says "anyone who commits a violent attack on the official premises, private accommodation or means of transport of an internationally protected person that is likely to endanger life or liberty".
An open letter was sent to Prime Minister Jean Chretien by a coalition of community groups and religious and ethnic advocacy groups asking him to oppose the legislation. "The Anti-terrorism Act is itself a threat to the legal and civil rights that Canadians now enjoy," they say.
In these experiences, civil society's protests and studied scrutiny of terror laws have been dismissed by the executive as aiding terrorism itself. Nevertheless, there is a great deal of respect in free societies of criticism of government policies. A public airing of these views allow the negotiation of government positions by the public.
A healthy distrust of government and authority is a hallmark of liberty. Therefore being 'anti-government' is a non-issue.
Court of public opinion
At home, almost any kind of unhappiness about the government can be conveniently perceived as 'anti-government' and declared as unpatriotic and illegal. Critical speech is being increasingly policed as part of the political culture of the ruling elite.
Civil libertarians understand the need to review security measures, but not at the cost of emasculating liberty by the executive. It is extremely unwise for the public to accept the blanket 'trust us to do our job' rhetoric of the executive without making it accountable to an independent judiciary or a critical legislature.
In the meantime, we wait for our version of the anti-terrorism amendments to existing laws.
In a Wesministerian 'elective dictatorship', parliament may crumble in the face of a strong executive. When the judiciary is unable to realise its proper constitutional role in checking both parliament and the executive, it becomes the responsibility of the court of public opinion to put an occasional spanner in the works when the situation calls for it.
In moments of crisis, the government always take the easier way out, by having more laws to deny us our basic rights on privacy and freedoms.
Our experience has shown that these repressive laws remain in our statute books and even in our constitution without any hint of repeal or even amendment. We have not heard of sunset clauses in our jurisprudence, nor likely to unless we take the trouble to re-engage that democratic space with our elected representatives. They may not know better.
When we give up freedoms, by reason or intimidation, we are passing more powers from the people to the executive.
When that happens and it has happened for so long that we think that is it normal, then it becomes necessary that we closely scrutinise the behaviour of our governments. This is normal.
