Human rights threatened by new anti-terrorism laws

Cormac O’Keeffe reports on new laws that could threaten our democracy in their very attempt to protect it.

LAST week, the Taoiseach told the Dáil there was “no particular or specific” threat from international terrorism to this country.

In the very same week, sweeping new anti-terrorism laws came into effect in Ireland.

The Terrorist Offences Act 2005 passed into being with minimum publicity.

While some of the media covered the severe anti-terror laws in Britain, hardly any noticed what was happening here.

The act has been strongly criticised by the Human Rights Commission (HRC), the State’s own rights watchdog.

As of now, the following situations could be deemed acts of terrorism:

* Damage to US aircraft at Shannon by anti-war protesters.

* Endangering traffic by anti-globalisation protesters.

* Collecting money for victims of Chechnya war.

The Terrorist Offences Act (TOA) defines terrorist activity as one which is committed with the intention of:

* Seriously intimidating a population.

* Unduly compelling a government or international organisation to perform or abstain from an act.

* Seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.

“The definition is impermissibly wide and runs the risk of categorising groups opposing dictatorial or oppressive regimes, anti-globalisation, anti-war or environmental protestors, or even militant trade unionists, as terrorists,” said the HRC.

In addition to the definition, the TOA lists further qualifying offences in a schedule to the act. These include murder and rape, serious assault, criminal damage to property and endangering traffic.

“This definition is so broad that it includes not just actual international terrorism but also captures many forms of political protest, particularly anti-globalisation protesters who have become a thorn in the side of the EU and the G7,” said Professor Dermot Walsh of University of Limerick.

Fionnuala Ní Áolan of the HRC said the vague language suggested mass public protests, such as the Stop Bush rally last year, could be targeted.

The TOA amends the Offences Against the State Act (OASA), which was initially designed to combat domestic subversives.

As a result, people arrested under the TOA are liable to be detained in custody for up to 72 hours.

This is six times longer than people arrested for most crimes.

Under the Criminal Justice Bill, Justice Minister Michael McDowell is extending that to 24 hours. Even still, people detained under the TOA can be held for three times longer.

Those prosecuted under the TOA can also be brought before the non-jury Special Criminal Court.

Justice Minister Michael McDowell amended the TOA to establish a second special criminal court. He said this was to clear the existing court backlog.

However, Prof Walsh said the second court will be used to try people under the TOA.

Under the act, the belief of a garda chief superintendent can be given as evidence against an accused.

The TOA contains a controversial provision whereby a person who is found guilty of committing a scheduled offence, such as endangering traffic, is presumed to have had a ‘terrorist’ intent.

“It appears to us that this provision may impose an unequal or unfair burden of proof on the accused,” said the HRC.

Prof Walsh, head of the Centre for Criminal Justice at UL, said this was “another major attack on the presumption of innocence.”

He said it would be “foolhardy” for anyone to think gardaí would not use these powers except in the most serious situations.

“We’ve already seen with section 30 of the Offences Against the State Act, how that has been twisted to get people in because it gives them more time in the detention room.”

A key part of the TOA is combating the financing of terrorism.

This makes the provision, collection or receipt of funds, with the intention or knowledge that part of it will be used for a terrorist activity an offence. The State will be able to seize and dispose of such funds.

HRC said the definition was too broad and could result in the collection of money for militant anti-globalisation or anti-war protests being seen as financing terrorism.

The commission said the act gave “excessively wide powers” to the Minister for Justice, who can apply to the High Court to seize the property of an unlawful organisation based on his opinion.

The HRC said the TOA could be in breach of the European Convention of Human Rights, which was incorporated into domestic law last year.

Prof Walsh said the TOA was the latest example where major changes to Irish criminal law was being dictated by Europe.

“Once these measures are adopted in Europe, we’re under an obligation to implement it here. People seemed to be totally unaware of this.”

The HRC also expressed concern at the “lack of democratic control and accountability” in the decision-making process in the EU.

“While there is an understandable concern to defend democracy against the type of atrocity committed on September 11, 2001, we should be careful to ensure that in defending our democracy, we do not begin to undermine the very values it is built upon,” said the HRC.

Provisions of the Terrorist Offences Act

1. Terrorist Activity:

* Seriously intimidating a population.

* Unduly compelling a government or an international organisation to perform or abstain from performing an act.

* Seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.

2. Terrorist-linked activity:

* Scheduled offence, such as murder, assault, criminal damage or endangerment of traffic, committed with a view to engaging in a terrorist activity.

3. Terrorist Offence:

* A person who engages, attempts to engage or threatens to engage in a terrorist activity or terrorist-linked activity.

4. Detention, Prosecution, Penalties:

* A person can be detained for a maximum period of 72 hours.

* Can be tried in the Special Criminal Court.

* Belief of chief superintendent can be used as evidence against him.

* Accused will be presumed to have carried out an offence for terrorist purposes, if it is proved he carried out the offence.

* Maximum penalty for membership of unlawful (terrorist) organisation increased from seven to eight years.

* New offences of providing assistance to an unlawful organisation with same maximum penalty.

* Additional penalties for those who commit offences with terrorist intent.

5. Financing of Terrorism:

* A person guilty of financing terrorism if the person by any means, directly or indirectly, provides, collects or receives funds intending or knowing that part of the money will be used for a terrorist offence.

* A person on summary conviction faces a fine of €3,000 and/or a sentence of up to 12 months.

* A person convicted on indictment faces an unlimited fine and/or a term not exceeding 20 years.

* High Court power to seize and dispose of such funds.