http://www.hindu.com/op/2008/09/28/stories/2008092854421400.htm
* Tough laws are not tough on terror * Breakdown of the deterrent model in crimes of passion and ideology *Aparna Chandra * Demanding stronger anti-terror laws is fashionable again. In this piece I will argue that this demand is a dangerous and unjustified knee-jerk reaction which can only lead us down the slippery slope towards an Orwellian State. Apart from creating an environment of empowerment where no section of the community feels compelled to take up arms against it, the state can do the following in response to terrorism: intelligence gathering, investigation, prosecution and punishment. The first is preventive. The other steps seek to identify and punish the perpetrators, thus deterring others from taking the same route. Conventional wisdom suggests that by removing procedural hurdles "tough" terror laws facilitate effective prosecution, leading to effective deterrence. The theory of deterrence presupposes that the perpetrator will carry out a rational cost-benefit analysis before engaging in the prohibited activity, and if the potential costs (assured and severe punishment) outweigh the benefits (gains from the crime), he will desist. However, this deterrence model collapses in crimes of passion or ideology which are beyond the pale of rationality. Would the threat of severe punishment deter someone who believes he is carrying out a sacred mission in violating the law? Indeed, there is no evidence that TADA or POTA had any deterrent effect at all. "Tough" laws will not deter potential terrorists. However, they will have a "chilling effect" on law-abiding citizens, who are more likely to be afraid of the consequences of engaging in any activity that, though not illegal, can bring them under the terror scanner. Furthermore, this perpetual state of fear is more likely to affect those who are already marginalised and vulnerable to state excesses. Counter-productive "Tough" laws can therefore be counter-productive by further disempowering the very people whose existing disempowerment makes them sympathetic to terrorist propaganda. They do so by removing certain procedural safeguards. First, these laws typically dilute the presumption of innocence and place a heavy burden on the accused to defend himself. Secondly, they remove certain limitations on what can be produced as evidence in court, especially by treating confessions made to police officers as admissible. Inadmissibility of such confessions is grounded in the fear that they may be extracted by threat and torture, which goes against fundamental values of our Constitution. It also makes the evidence unreliable, since the truth remains that under threat a person will admit to committing the gravest of crimes just to escape further torture. Procedural safeguards are not a matter of mundane detail, but are expressions of the fundamental norms on which our democratic polity stands. We hold the rights to life, liberty, equality and dignity sacred and fundamental to human existence because without them a free and democratic society is not possible. These rights do many things, but most fundamentally, they provide checks and limitations on state action, which is what "tough" terror laws seek to remove. Weak links Therefore, "tough law" is merely a euphemism for bypassing the fundamental constitutional promise of freedom and dignity. If these principles can be swept aside when they are inconvenient to follow, they are not principles but merely optional guidelines. If efficiency and convenience can form the limits of our foundational principles, then no right can remain sacrosanct, including the right to life and even the right to be reading this newspaper. Even if an argument can be made for placing restrictions on these foundational values, there has to be strong and compelling evidence that such restrictions are justified. There is absolutely no evidence, from any part of the world, that having draconian laws has had a beneficial impact on fighting terror. "Tough" laws are not tough on terror. They are not tough in principle or impact. They do not prevent terror; they perpetuate it. The weak links in the state apparatus for fighting terror are intelligence and investigation. Instead of increasing the capacity of poorly performing state agencies, "tough laws" condone their poor performance by allowing them to take constitutionally impermissible short-cuts. Instead of reinforcing our weak links, we are weakening the strong links of well-crafted procedural safeguards. This can only make the entire chain weaker than it already is. -- Bobby Kunhu http://community.eldis.org/myshkin/Blog/ --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [EMAIL PROTECTED] For more options, visit this group at http://groups.google.com/group/greenyouth?hl=en-GB -~----------~----~----~----~------~----~------~--~---
