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tinued in force till it was repealed in 1978.11 This became a piece of legislation
much abused by the then Congress government. It led to its downfall at the
general elections in 1978. The next in the series was the National Security Act,
enacted in 1980.12 The validity of this law was upheld by a constitution bench of
the Supreme Court in A. K Roy v. Union of India13 despite the fact that the detenu
´
did not have the right to be represented by a lawyer before the Advisory Board. As
with many other laws, the state of Jammu and Kashmir was excluded from the
application of this National Security Act. This law was the first serious attempt to
tackle terrorism and its effectiveness was strengthened by an amendment in 1984,
mainly to address insurgency in the state of Punjab.
With the escalation of terrorist activities in India, a more specific law, the
Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) was
enacted.14 This law had a ‘sunset’ clause and ceased to be in force in 1987.
As Parliament was not in session at that time, the President of India promul-
gated the Terrorist and Disruptive Activities (Prevention) Ordinance 1987
under article 123 of the Constitution. It came into force on 24 May 1987.
Apart from including the provisions of TADA (1985), this Ordinance pro-
vided for a more deterrent punishment for terrorist acts, enabled the central

1 2 3
Act No. 6 of 1908. Act No. 24 of 1932. Act No. 6 of 1947.
4 5 6
Act No. 4 of 1950. Act No. 26 of 1971. AIR [1950] SC 27.
7 8 9
Act No. 28 of 1958. Act No. 37 of 1967. (1998) 2 SCC 109.
10
(1995) 1 SCC 428.
11
Maintenance of Internal Security (Repeal) Act 1978 (Act No. 27 of 1978).
12
Act No. 65 of 1980. 13 AIR [1982] SC 710. 14 Act No. 31 of 1985.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 353

government to constitute Designated Courts, and vested rule-making power
with the central government. TADA was re-enacted in 1987 with some
changes. Unauthorised possession of arms and ammunition specified in the
Arms Rules 1962 in a notified area (so notified by the state government) was
made punishable with imprisonment for not less than five years, but which
may extend to imprisonment for life and a fine. Confessions made by a person
before a ‘high ranking police officer’ (not lower than a Superintendent of
Police) and recorded by such police officer in writing or on any mechanical
devise was made admissible in trial. The ‘Designated Courts’ could presume
that an accused had committed an offence where arms or explosives or any
other substance so specified were recovered from his possession. They were
also empowered to try certain offences summarily15 in accordance with the
procedure prescribed in the Code of Criminal Procedure 1973.16 The TADA
of 1987,17 unlike previous detention laws,18 was made applicable to the state
of Jammu and Kashmir as well.
The validity of TADA (1987) was challenged, but the Supreme Court in
Kartar Singh v. State of Punjab19 upheld its validity in spite of the sweeping
powers given to the authorities. However, the Supreme Court also observed
that this law was being used to circumvent the existing ordinary criminal law
and criminal procedure even when the offence fell outside the scope of
TADA. In spite of the growing acts of violence and terrorism in the state of
Jammu and Kashmir, a much larger number of people were detained in the
state of Gujarat,20 where there was no such insurgency. Many innocent
people, petty criminals and political opponents were charged under TADA
because police and security personnel were acting under the dictation of their
political bosses. Convictions under TADA could be secured in no more than
3 per cent of the cases. The courts instead convicted them under the Indian
Penal Code, 186021 in a majority of cases. This led to a large number of people
being detained, very few being charged (about 6 per cent) and even less being
convicted under TADA.
TADA had a sunset clause, but it was extended three times, each time for a
period of two years from 1989. A law that should have existed only for two
years, continued for eight years and was not extended beyond that because of

15
In Sanjay Dutt v. State (Central Bureau of Investigation, Bombay) (1994) 5 SCC 410, the
Supreme Court held that the phrase ‘arms and ammunition’ must be read conjunctively
and acquitted the petitioner who had only a country-made pistol and no ammunition.
16
Act No. 2 of 1974. 17 Act No. 28 of 1987.
18
Preventive Detention Act 1950; Maintenance of Internal Security Act 1971; and National
Security Act 1980.
19
1994 (2) J.T (SC) 423.
20
About 20,000 people were detained in Gujarat under TADA while the number so detained
was far less in the state of Jammu and Kashmir.
21
Act No. 45 of 1860.
V. VIJAYAKUMAR
354

public pressure, the intervention of the National Human Rights Commission
(NHRC), as well as the then forthcoming general elections. It is even more
interesting to note the emergence of a more specific enactment in 1993 called
the South Asian Association for Regional Cooperation (SAARC)
(Suppression of Terrorism) Act22 that sought to give effect to the SAARC
Convention on Suppression of Terrorism 1987.23 According to section 3 of
the Act of 1993, the provisions of Articles I to VIII of the SAARC Convention
were declared to have the force of law and given precedence over any other
existing law in India.24 Article I of the SAARC Convention provided a wider
definition of a terrorist act and provided that such an act shall not be regarded
as a political offence, or an offence connected with a political offence, or as an
offence inspired by political motives. Two specific courses of action, extra-
dition or prosecution, were prescribed to states to proceed against a person
who had committed an offence as specified under Article I and found in any
of the contracting states.25 Accordingly, section 6 included offences com-
mitted outside India. There is no sunset clause in this Act. TADA was also
extended for the third time in that year, 1993.
Probably the first legislation to define ‘terrorism’ was the Terrorist
Affected Areas (Special Courts) Act 1984.26 Section 3(1) of the Act gave the
power to the central government to declare an area to be terrorist affected, if
to do so was necessary to cope with terrorism. This Act also enabled the
government to constitute Special Courts for the speedy trial of suspected
terrorists (ss. 4–8), and the appointment of an Additional or Special Public
Prosecutor (s. 9). A ‘terrorist’ was defined as:
A person who indulges in wanton killing of persons or in violence or in the
disruption of services or means of communications essential to the com-
munity or in damaging property with a view to:
i. putting the public or any section of the public in fear; or
ii. affecting adversely the harmony between different religions, racial,
language or regional groups or castes or communities; or
iii. coercing or overawing the government established by law; or
iv. endangering the sovereignty and integrity of India.



22
The SAARC Convention (Suppression of Terrorism) Act 1993 (Act No. 36 of 1993).
23
The SAARC Convention on Suppression of Terrorism was ratified by all the states in the
region (Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka) and is the
second regional Convention to emerge in the sphere of Public International law.
24
Section 3 of the SAARC (Suppression of Terrorism) Act 1993 provides that
‘Notwithstanding anything to the contrary contained in any other law, the provisions of
Article I to VIII of the Convention shall have the force of law in India.’
25
See Article IV of the SAARC Regional Convention on Suppression of Terrorism 1987.
26
Act No. 61 of 1984.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 355

Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act
198527 contained a more comprehensive definition of a terrorist:
Whosoever with intent to overawe the Government as by law established or
to strike terror in the people or any section of the people or to alienate any
section of the people or to adversely affect the harmony amongst different
sections of the people does any act or thing by using bombs, dynamite, or
other explosive substances or inflammable substances or fire-arms or other
lethal weapons or poisons or noxious gases or other chemicals or any other
substances (whether biological or otherwise) of a hazardous nature in such
a manner as to cause, or as is likely to cause, death of, or injuries to, any
person or persons or damage to, or destruction of, property or disruption
of any supplies or services essential to the life of the community.
There are also various state enactments in force to deal with particular situations
like organized crimes, dangerous activities, anti-social activities and dacoity.
They include legislation like the Disturbed Areas (Special Courts) Act 1976,28
Armed Forces (Punjab and Chandigarh) Special Powers Act 1983,29 and the
Armed Forces (Jammu and Kashmir) Special Powers Act 1990.30
With an increasing number of terrorist attacks in the state of Jammu and
Kashmir, the North Eastern states, Andhra Pradesh, Mumbai (Bombay),
Coimbatore and other cities in India, the non-Congress government at the
centre31 initiated steps to introduce new legislation as TADA ceased to exist
and the SAARC (Suppression of Terrorism) Act 1993 was considered inadequate.

III. Institutional responses to a new terrorism law
Two contradictory, yet well-considered, conclusions were arrived at by the
Law Commission of India and the NHRC concerning the introduction of new
legislation to counter terrorism. The new law is not a ‘reactionary’ one in
India, but the result of a process of meaningful consultation.32

A. Responses of the National Human Rights Commission
The NHRC was set up by the Protection of Human Rights Act 1993.33 It
reiterated the core of the Vienna Declaration and Programme of Action 1993
that ‘the acts, methods and practices of terrorism in all its forms and mani-
festations . . . are activities aimed at the destruction of human rights . . . The
international community should take the necessary steps to enhance

27
Act No. 31 of 1985. 28 Act No. 77 of 1976. 29 Act No. 34 of 1983.
30
Act No. 21 of 1990.
31
National Democratic Alliance led by the Bharatiya Janata Party.
32
This seems to contradict the view that a high profile event, such as a terrorist attack will
inevitably be followed by a spate of hastily enacted anti-terrorism laws.
33
Act No. 10 of 1994.
V. VIJAYAKUMAR
356

cooperation to prevent and combat terrorism.’ Referring to a series of UN
Resolutions and Declarations, the NHRC stated that ‘the nation, its police
and armed forces have a duty to fight and triumph over terrorism. It must be
done in a manner that respects the Constitution of our Republic, the laws of
our land and the treaty commitments to which we have entered, which set out
the provisions of international law and standards we must observe.’34
Referring to the violations of the rule of law by the state machinery, NHRC
was opposed to the renewal of TADA and insisted on transparency and
accountability in the handling of allegations of human rights violations,
regardless of who is responsible for the violations.35 NHRC also stated that
‘any worthwhile strategy to combat insurgency and terrorism requires strong
citizen support that can be achieved by dialogue with the respective societies
affected by the acts of terrorism’.36 The NHRC also welcomed the govern-
ment’s decision to find political solutions to the problems of insurgency and
terrorism, thus emphasizing good governance through which the grievances of
the past and the present may be addressed meaningfully. The NHRC had
registered 259 cases against the members of Border Security Force up to
31 March 1997, including 12 officers. In 31 cases where investigation against
army personnel was conducted, 81 including 29 officers, were eventually
punished for human rights’ violations.37 The NHRC also welcomed the steps
being taken to strengthen the international legal regime in this respect.38
The NHRC attempted to balance human rights with the concerns of
terrorism and observed that this was ‘essential, both to the cause of human
rights and to the fight against terrorism’. It even recommended to the
government of India that a suitable financing of terrorism law be enacted.39
However, in expressing its opposition to the Prevention of Terrorism Bill
2000, the NHRC unanimously decided that
There is no need to enact a law based on the Bill of 2000 and the needed
solution can be found under the existing laws if properly enforced and
implemented, and amended if necessary. The proposed Bill, if enacted,
would have the ill-effect of providing unintentionally a strong weapon
capable of gross misuse and violation of human rights which must be
avoided particularly in view of the experience of the misuse in the recent
past of TADA and earlier MISA in the emergency days.40
In the context of terrorism financing, it is not clear why the NHRC recom-
mended new legislation. The Unlawful Activities (Prevention) Act 1967 (that
has no sunset clause) deals with the funds of unlawful associations. If needed,
the same law could be amended, instead of enacting a new law.


34
Annual Report 1996–1997, National Human Rights Commission, New Delhi, at 8–10.
35
Ibid. 36 Ibid., at 11. 37 Ibid., at 11–12. 38 Ibid., at 10. 39 Ibid., at 11.
40
Ibid., at 12.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 357

The NHRC has acted both on the basis of complaints as well as suo moto
on reports of human rights violations by the police, security and armed forces
in the state of Jammu and Kashmir. The Commission issued directives to
state authorities, and the Ministry of Defence of the government of India. The
Army eventually initiated investigations against 96 persons in Jammu
and Kashmir and 26 in the North Eastern states during 2000–2001.41 The
Commission issued notice to the Ministry of Home Affairs of the
Government of India and the government of the state of Manipur to show
cause as to why immediate interim relief should not be accorded to the next-
of-kin of the victims of military action. In some cases, the Commission
directed that the compensation be paid to the next-of-kin of the victims
killed by the Army, police and security forces.42
The NHRC also considered it essential to examine the Draft Prevention of
Terrorism Bill 2000.43 Accordingly, the Commission, chaired by J. S. Verma,
former Chief Justice of India, formulated a unanimous opinion. The
Commission thought that there was no need to enact a new law such as the
Prevention of Terrorism Bill 2000. The concerns of the draft Bill were sub-
stantially taken care of under existing laws.44 The Commission went on to say
that the main problem facing the country related to proper investigation,
adjudication and punishment, a problem which could not be solved by
enacting a new law. The Commission also pointed out that the draft Bill
would hinder, rather than enhance the effective implementation of interna-
tional treaties and instruments on human rights, to which India is a party.
Yet, the Commission supported new laws dealing with financing of terrorism,
a matter on which the draft Bill was silent.45
Nevertheless, the Government of India decided in favour of a specific
terrorism law. However, as the Parliament of India was not in session, the
Government recommended immediate action to the President. Accordingly,
the President promulgated the Prevention of Terrorism Ordinance46 on
24 October 2001 under Article 123 of the Constitution. The NHRC opposed
the Ordinance. It observed that:
undoubtedly national security is of primary importance. Without protect-
ing the safety and security of the nation, individual rights cannot be
protected. However, the worth of the nation is the worth of the individuals


41
Ibid., at 13–17. 42 Ibid., at 18.
43
Annual Report 2000–1, National Human Rights Commission, New Delhi, at 41.
44
The Indian Penal Code 1860; Arms Act 1959; Explosives Act 1884: Explosive Substances
Act 1908; Armed Forces (Special Powers) Act 1958; Unlawful Activities (Prevention) Act
1967; Suppression of Unlawful Activities against the Safety of Civil Aviation Act 1982;
other Preventive Detention laws of the centre as well as of many states were referred to.
45
Note 43 above at 43.
46
Prevention of Terrorism Ordinance 2001 (Ordinance 9 of 2001).
V. VIJAYAKUMAR
358

constituting it. Article 21 of the Constitution which guarantees a life with
dignity, is non-derogable. Both national integrity as well as individual
dignity are core values of the Constitution, the relevant international
instruments and treaties, and respect the principles of necessity and propor-
tionality (emphasis added).47

The Commission went on to add that the purpose of anti-terrorism measures
must therefore be to protect democracy and human rights, which are funda-
mental values of our society, not undermine them.48 The NHRC had
also intervened in preventing the TADA from being further extended
beyond 1996.

B. Responses of the Law Commission of India
With the background of continued terrorist attacks, the Ministry of Home
Affairs of the Government of India requested the Law Commission to under-
take a fresh examination of the need for new legislation to combat terrorism
and other anti-national activities in India. The Law Commission came to the
conclusion that specific legislation to fight terrorism is a necessity in India.
The Law Commission observed that it is not that the enactment of such
legislation would by itself subdue terrorism. It may, however, arm the state to
fight terrorism more effectively.49 On the question that power is likely to be
misused, the Law Commission was quick to refer to the decision of the
Supreme Court of India in State of Rajasthan v. Union of India50 which
observed that:
It must be remembered that merely because power may sometimes be
abused, it is no ground for denying the existence of power. The wisdom
of man has not yet been able to conceive of a government with power
sufficient to answer all its legitimate needs and at the same time incapable
of mischief.
However, the Law Commission felt that it should not be a permanent enactment
and pointed out that the draft Bill had provided a specific period for its operation.
The Commission rejected the observation made by the Joint Secretary in
the Ministry of External Affairs that ‘the constitution of Special Courts and
Special Laws are objected to by western governments as they give rise to
complications in dealing with the extradition applications’. The Commission
observed that it is a matter of policy for the government to decide whether to


47
Annual Report 2001–2002, National Human Rights Commission, New Delhi, at 26.
48
Ibid.
49
173rd Report of the Law Commission of India on Prevention of Terrorism Bill 2000,
April 2000, Chapter –III.
50
1978 SCR 1; AIR [1977] SC 1361.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 359

dispense with special courts or special procedures. The Commission agreed
that the right of appeal should also be given to the prosecution to challenge
the grant of bail.51
The release of the working paper by the Law Commission was followed by
the hijacking of an Indian Airlines plane and the release of three notorious
terrorists in order to save the passengers and crew. 9/11 and terrorist attacks
on the legislature of Jammu and Kashmir convinced the Government of India
to persuade the President of India to promulgate the Prevention of Terrorism
Ordinance on 24 October 2001. The Ordinance of 2001 was not of a reac-
tionary nature, but the subject of detailed consideration.


IV. Prevention of Terrorism Act 2002
The Prevention of Terrorism Bill 2002 was introduced in the Lok Sabha by the
National Democratic Alliance (NDA) led by the Bharatiya Janata Party (BJP).
BJP had earlier criticised the TADA for its misuse but became a major partner of
the NDA in introducing the Bill of 2002. More ironically, the Congress Party that
was responsible for all the preventive detention laws, the Unlawful Activities
(Prevention) Act 1967 and TADA, vehemently opposed the Bill of 2002.
After a prolonged debate in the Lok Sabha, the Bill was passed. However, it
was defeated in the Rajya Sabha (Council of States), the Upper House of
Parliament. The Constitution requires a Bill to be approved by both Houses
of Parliament in identical terms.52 To break this deadlock, the President
convened a Joint Sitting of both the Houses of Parliament to discuss the
Bill on 26 March 2002.53 The Bill was finally passed at this joint sitting,
convened only for the third time since the commencement of the
Constitution in 1950, with 425 members voting in favour and 296 against
the Bill. The Bill received the assent of the President on 28 March 2002 and
became the Prevention of Terrorism Act (POTA).54 Among the twenty-eight
states in the Indian Union, POTA was opposed by sixteen states, fourteen led
by Congress and two by Communist parties.


A. Salient features of POTA
POTA is organized under six chapters, consisting of sixty-four sections. The
last chapter has been subject to an amending ordinance55 followed by an


51
For details see the 173rd Report of the Law Commission of India on Prevention of
Terrorism Bill 2000.
52
Article 107 (2) of the Constitution of India. 53 Article 108 of the Constitution of India.
54
Act No. 15 of 2002.
55
Prevention of Terrorism (Amendment) Ordinance 2003 (Ordinance 4 of 2003).
V. VIJAYAKUMAR
360

amendment Act56 to strengthen the role of the Review Committee. Some
important features of POTA are these, and at many points it can be seen that
an attempt has been made to strike a balance between empowering the
government and checking abuse of power:
a. Section 1(6) provides that POTA shall remain in force for a period of three
years from the date of its commencement. The same section also provides an
explanation for the word ‘commencement’. POTA is retroactive and
deemed to have come into force on 24 October 2001, although it was
enacted in 2002. In other words, the sunset clause under POTA begins
retrospectively from the date of commencement of the first Prevention of
Terrorism Ordinance dated 24 October 2001. The new Government that
assumed power early this year promised to repeal POTA even before that
date.57 That promise was kept on 23 September 2004 when POTA was
repealed by an executive ordinance, just a month before it was due to expire.
b. Holding the proceeds of terrorism is made illegal and the central as well as
state governments are empowered to forfeit such proceeds whether or not
there is any prosecution or conviction, subject to the procedure prescribed
in POTA.58 However, such power of forfeiture cannot be exercised arbitra-
rily as a number of checks, both procedural and substantial, are provided in
the Act.59 An appeal to the High Court against an order of forfeiture is also
provided for as a check on arbitrary exercise of power.60
c. The central government has the power to amend the schedule to POTA61 to
exclude a Terrorist Organization included in the schedule, on the applica-
tion of the organization concerned or any person affected by its inclusion.62
On refusal, an appeal is provided to the Review Committee.
d. On the request of an investigating police officer, either the Court of a Chief
Judicial Magistrate or the Court of a Chief Metropolitan Magistrate may
direct the accused to give samples of handwriting, fingerprints, foot-prints,
photographs, blood, saliva, semen, hair or voice to the police officer.63 If the
accused person refuses to give such samples as directed, the courts shall
draw an adverse inference against the accused.64



56
Prevention of Terrorism (Amendment) Act 2003 (Act No. 4 of 2004).
57
The Information and Broadcasting Minister Mr S. Jaipal Reddy said that the decision to
repeal POTA was in keeping with the promise made to that effect in the Common
Minimum Programme of the UPA government led by the Congress Party. The govern-
ment would rather strengthen the Provisions of the Prevention of Unlawful (Activities)
Act 1967 through major amendments in the absence of POTA. ‘Bill to Repeal POTA
Soon’, Deccan Herald, 11 August 2004. Also http://www.deccanherald.com/deccanherald/
aug11, 2004/i2.asp.
58
Section 6. 59 Sections 6–17. 60 Section 10. 61 Section 18(2). 62 Section 19.
63
Section 27(1). 64 Section 27(2).
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 361

e. A Special Court can, on application by a witness, or the Public Prosecutor,
or on its own motion, keep the identity and address of a witness secret, if it is
satisfied that the life of the witness is in danger.65
f. Certain confessions made to a police officer have been made admissible,
notwithstanding prohibitions in existing laws. However, there are a series of
checks to protect the rights of the accused. Confessions are to be made only
to a high-ranking police officer not below the rank of a Superintendent of
Police.66 Before taking such confessions, the police officer should explain to
the accused in writing that he is not bound to make a confession and that if
he does so, it may be used against him. The police officer shall not compel or
induce the person to make any confession if he decides to remain silent. The
confession shall be recorded in the same language as it is given. Such
confessions shall be produced before a Chief Metropolitan Magistrate or a
Chief Judicial Magistrate, in the original form, within forty-eight hours. If
there is a complaint of torture, then such person shall be directed to be
produced for medical examination before a Medical Officer, not lower in
rank than an Assistant Civil Surgeon and thereafter he shall be sent to
‘judicial custody’.67
g. Appeals against a decision of a Special Court to the High Court shall be
heard by a bench of two judges.68 However, such appeals shall be preferred
within a period of thirty days from the date of the decision unless the
appellant has sufficient cause.69
h. Chapter V provides for an elaborate power to intercept communication,
which section 36 defines to include electronic communication, oral and
wire communication. All applications for authorization of interception
must be approved by the ‘Competent Authority’ to be appointed by the
central or state government.70 A series of procedural safeguards have been
built into POTA to prevent arbitrary exercise of power, including the
submission of an order of interception to a Review Committee.71 The
central and state governments shall cause an annual report of interception
to be laid before their respective legislatures. However, governments are
permitted to exclude any matter in the annual report if its inclusion is
prejudicial to the security of the state or to the prevention and detecting of
any terrorist act.72
i. There is a specific provision for punishment as well as compensation for
malicious action. The provision for ‘personal officer liability’ for malicious
action is a welcome one that can to an extent prevent even high-ranking
police officers from exercising their powers maliciously.73


65
Section 30. 66 Equal to the chief Police Officer of a district. 67
Section 32.
68
Section 34(1) and (2). 69 Section 34(5). 70 Section 37. 71
Sections 38 to 47.
72
Section 48. 73 Section 58.
V. VIJAYAKUMAR
362

j. ‘Review Committees’ are provided for, consisting of a Chairman who is a
sitting or retired judge of a High Court and not more than three members.74
The Prevention of Terrorism (Amendment) Act 2003 inserted new subsec-
tions to section 60,75 resolving several federal issues as well as questions
concerning the consequences of directions issued by Review Committees.
The constitutional validity of this amendment was upheld by a division
bench of the Madras High Court in State of Tamil Nadu v. Union of India.76
POTA is a balanced piece of legislation that has taken national security
seriously without diluting too much the rights and liberties of individuals.
A number of checks have been incorporated to prevent abuse or misuse of
power. The nationwide consultations have contributed to this balanced
approach. Yet, POTA has not escaped judicial scrutiny in its brief period of
existence.

B. Judicial response
Like the earlier preventive detention and anti-terrorism laws, the constitu-
tional validity of POTA has been questioned. The constitutionality of POTA
was questioned before the Division Bench of Punjab and Haryana High Court
in Simranjit Singh Mann v. Union of India,77 but without success. The High
Court relied on a Supreme Court decision78 which had approved of the
Terrorist and Disruptive Activities (Prevention) Act 1987, a piece of legisla-
tion that POTA had borrowed heavily from.
A batch of petitions were also filed before the Supreme Court of India
challenging the constitutional validity of POTA, including a public interest
petition filed by the People’s Union for Civil Liberties.79 All these petitions
were clubbed together by the Supreme Court in People’s Union for Civil
Liberties v. Union of India.80 The Division Bench of the Supreme Court relied
on the Constitution Bench decision in Kartar Singh v. State of Punjab.81
It rejected the contention of the petitioners questioning the legislative compe-
tence of Parliament. Similarly, the court also rejected the contention that POTA
is likely to be misused and pointed out that TADA’s misuse had resulted in
a large number of acquittals. The court observed that ‘once the legislation is
passed the government has an obligation to exercise all available options to
prevent terrorism within the bounds of the Constitution’. Following earlier

74
Section 60. 75 Section 60(4), (5), (6), and (7).
76
Writ Petition Nos. 1238, 1239 and 1240 of 2004 and W.P.M.P. Nos. 1297, 1298 and 1299
of 2004, as decided on 4 February 2004.
77
2002 Cri.L.J. 3368. 78 Kartar Singh v. State of Punjab (1994) 3 SCC 569.
79
Writ Petition (Crl) 89/2002, W.P. (Crl) 129/2002, W.P. (Crl.28/2003 and W.P. (Crl)
48/2003.
80
(2004) 9 SCC 580. 81 (1994) 3 SCC 569.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 363

decisions,82 the court held that mere possibility of abuse cannot be grounds for
denying the vesting of powers or for declaring a statute unconstitutional.
The petitioners argued that section 3(3) of POTA gave rise to the possibi-
lity of misuse as the term ‘abet’ had not been defined in POTA. The court held
that the term ‘abet’ as defined in the Indian Penal Code would apply to POTA
as well and rejected the argument of the petitioners. The petitioners also
challenged the validity of section 4 which provides for punishment for
‘unauthorised possession’ of arms or other weapons, on the basis that the
knowledge element is absent in that provision. The court rejected this argu-
ment by pointing to the decision in Sanjay Dutt v. State (II)83 and held that
the section presupposes the requirement of knowledge.
The petitioners challenged the validity of the sections concerning notifica-
tion and denotification of terrorist organizations. They contended that inclu-
sion in the schedule was without any legislative decision. They also argued
that it excessively delegated power to the central government in the appoint-
ment of members to the Review Committee. The Supreme Court rejected
these arguments and upheld the validity of these provisions on the ground
that there is a post-decisional hearing, alternative constitutional remedies are
available, and that the Review Committee is headed by a person who is or has
been a judge of the High Court.
The petitioners assailed sections 20, 21, and 22 on the ground that no
requirement of mens rea for offences is provided in these sections. Referring
to similar provisions in the Terrorism Act 2000 of the United Kingdom84 and
the need for such laws all over the world, the Supreme Court held that these
sections are limited only to those activities that have the intent of encoura-
ging, furthering, promoting or facilitating the commission of terrorist activ-
ities. There cannot be any misuse if these sections are understood that way,
the court said.85
The petitioners challenged the validity of section 27 under which a police
officer can obtain a court direction for obtaining samples of handwriting,
fingerprints, foot-prints, photographs and intimate body samples, and also
the threat of adverse inferences if an accused refused to comply. The court
rejected this challenge and pointed out that the courts have discretionary
power and have to record the reasoning for allowing or rejecting a request
made by an investigating officer. The Supreme Court also referred to an


82
State of Rajasthan v. Union of India, AIR [1977] SC 1361; Collector of Customs v. Nathella
Sampathu Chetty, AIR [1962] SC 316; Keshavananda Bharathi v. State of Kerala, AIR
[1973] SC; and Mafatlal Industries v. Union of India (1997) 5 SCC 536.
83
(1994) 5 SCC 410. 84 Sections 11, 12 and 15 of Terrorism Act 2000.
85
The court seems to have ignored the misuse of POTA by the Government of Tamil Nadu
in detaining the leader of MDMK party for addressing a public meeting in support
of LTTE.
V. VIJAYAKUMAR
364

earlier decision by a bench consisting of eleven judges in State of Bombay v.
Kathi Kalu Oghad86 in which the court had observed that requiring an
accused person to provide such samples does not amount to compelling the
accused person to testify as a witness in his own trial.
The petitioners challenged section 30 that provides for the protection of
the identity of witnesses on the ground that the right to cross-examine, and
thus the right to fair trial had been impaired. The court relied on Kartar Singh
which upheld a similar provision (section 16) in the TADA. The court
observed that the right to cross-examine as such is not taken away, but
confers necessary discretion to keep the identity of witnesses secret, if their
lives would otherwise be in danger. In the opinion of the court, a fair balance
has been maintained among the competing interests of the accused, the
witness and the public.
Thus the Supreme Court followed the tradition of upholding the consti-
tutional validity of POTA, like the previous preventive detention and terror-
ism laws. One advantage is that the Supreme Court as well as the state High
Courts retain their appellate as well as supervisory jurisdiction to correct any
injustice caused to the individuals. Judicial review of administrative action
has been a foundation of constitutional governance in India.
Mention should also be made of a few judicial decisions in the application
of POTA. In spite of section 34 (2) that mandates the appeals to be heard
by the High Court division bench consisting of two judges, many appeals
have been disposed off by single judge benches of the High Courts. However,
some of these decisions of a single judge bench of the High Courts have
been set aside by the Supreme Court on second appeal in accordance with
section 34 (2).87 In a few cases, the High Courts have intervened to provide
appropriate relief to appellants for non-compliance with the provisions of
POTA by the authorities or by the Special Courts.88 In an interpretation of

86
1962 (3) SCR 10; AIR [1961] SC 1808.
87
State (Central Bureau of Investigation, New Delhi) v. Navjot Sandhu & Afshan Guru and
others, (2003) 6 SCC 641; State of Gujarat v. Salimbhai Abdulgaffar Shaik and others,
(2003) 8 SCC 50; and State of Tamil Nadu v. Vaiko, Writ Appeal No. 4065 of 2003 as
decided by the Madras High Court on 15 December 2003.
88
Mohammad Gausuddin v. State of Maharastra, Criminal Appeal Nos. 3 and 679 of 2002 as
decided by the Nagpur division bench of the Bombay High Court on 5 March 2003;
Kamlakar & Others v. State of Maharastra, Criminal Appeal Nos. 597 and 676 of 2002 as
decided by the Nagpur division bench of the Bombay High Court on 30 April 2003;
R. R. Gopal v. State, Criminal Appeal No. 1219 of 2003 as decided on 19 September 2003;
Shahul Hammeed v. State of Tamil Nadu, Criminal Appeal No. 310 of 2004 as decided on
18 March 2004; Paranthaman v. State of Tamil Nadu, Criminal Appeal No. 363 of 2004 as
decided on 5 April 2004; Madurai Ganesan & Others v. State of Tamil Nadu, Criminal
Appeal No. 1397 of 2003 as decided on 12 January 2004; P. Nedumaran & others v. State of
Tamil Nadu, Criminal Appeal No. 749, 750–2, 764–6 of 2003 as decided on 18 December
2003 by various division benches of the Madras High Court.
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 365

section 49 (7) of POTA, a division bench of the Madras High court held that
there is no bar to move bail petitions within one year of detention, as decided
by the Special Court.89 The High Court of Madras has also directed the
closure of a POTA case against a fifteen-year-old minor and directed that
he may be proceeded against under the Juvenile Justice (Care and Protection
of Children) Act 2000.90


V. POTA in practice
The short duration of POTA’s existence has proved its effectiveness as well as
its misuse. When compared with TADA, the previous terrorism law, the
number of people detained has come down drastically.91 There are about
440 persons detained under POTA, mainly from six states. About 93 are
detained in the state of Maharastra, 90 in Jharkhand, 83 in Gujarat, 46 in
Delhi, 42 in Tamil Nadu and 36 in Andhra Pradesh.92 The number of persons
arrested but not detained is, of course more. Some were released on bail and
some discharged by the state governments. The reasons for release may be
many, yet the safeguards provided under POTA are possibly among them.
However, the misuse of POTA could not be prevented altogether, primar-
ily because of the lack of accountability and the inability to fix personal
responsibility for such abuse of power. Nonetheless, the misuse has been, to
a large extent, minimized during its short existence when compared to the
previous legislation. The instances of misuse of POTA include cases from the
state of Jharkhand. This state alone witnessed the arrest of about 218 people
(as of February 2003) and included persons as young as twelve and as old as
eighty-one. The state government directed the Crime Investigation
Department (CID) to review the cases filed by the police. The CID reviewed
84 cases and found insufficient evidence in 41. Out of 277 persons arrested, 71
were granted bail (as of 1 January 2004). The Review Committee constituted
by the state government of Jharkhand also discharged 114 persons.93 These
developments clearly indicate abuse of power as well as the effectiveness of
safeguards provided under POTA. However, there is no information as to the
compensation paid to those detained illegally.


89
Paza Nedumaran and others v. State of Tamil Nadu, Criminal Appeal Nos. 1606, 1607,
1639, 1640, 1779 and 1780 of 2002 and Criminal Miscellaneous Petition No. 11999 of 2002
as decided on 3 March 2003.
90
Prabakaran v. State of Tamil Nadu, Writ Petition No. 4511of 2003.
91
In the State of Gujarat alone about 20,000 people were detained under TADA.
92
See ‘Interpretation of the Draconian: An Analysis of the POTA Judgement and POTA
Amendment Review’, Asian Centre for Human Rights, http://www.achrweb.org/Review/
0104.htm.
93
Ibid.
V. VIJAYAKUMAR
366

The Central Review Committee received about 180 complaints. Out of
this, 40 were from Tamil Nadu, 39 from Maharastra, 28 from Delhi, 26 from
Uttar Pradesh, 16 from Jammu and Kashmir and 15 from Jharkhand.94 The
Central Review Committee has been giving directions in favour of both
the individuals detained as well as in favour of the state. Yet, some of the
directions issued by the Review Committee have not been implemented by
the states in spite of the clear terms of section 60 (7) of POTA.

VI. POTA repealed
The issue of repealing POTA was discussed by the present Home Minister of
India and it was very clearly expressed to him that if POTA was repealed the
security forces in the country would be unable to take action against terrorist
and anti-national outfits. The concerns relating to money laundering and the
inability of the security forces to act without a law like POTA as well as the
limitations in banning terrorist organizations under the Unlawful Activities
(Prevention) Act 1967 were also raised.95
In spite of these developments, the new government at the centre
attempted to introduce a bill to repeal POTA as promised in the Common
Minimum Programme of the United Progressive Alliance, led by the
Congress party, despite the fact that POTA would automatically cease to
exist on 23 October 2004. However, the government could not introduce a
bill in the current budget session for want of time. Yet, the Union Cabinet
recommended to the President its decision to repeal POTA, based on which
two Ordinances were issued by the President under article 123 of the
Constitution on 23 September 2004, just one month before POTA’s expiry.
The first Ordinance repealed POTA96 and the second to amend the existing
Unlawful Activities (Prevention) Act 196797 in an attempt to strengthen its
provisions. This Act of 1967 has no sunset clause. However, the Central
Review Committee would continue to function and dispose of all petitions
before it within one year.98
Politics seems to have sidelined the importance and relevance given to
prevention of terrorism on the Indian soil. Thus, POTA probably became the
first law to be repealed even before the operation of the sunset clause built
into it. The repeal is not by any law made by the Parliament, but by an


94
Ibid.
95
See ‘Home Minister, Officials Mull POTA-Less Scenario’, Deccan Herald, 16 July 2004,
http://www.deccanherald.com/deccanherald/july162004/n11.asp.
96
Prevention of Terrorism (Repeal) Ordinance 2004 (Ordinance 1 of 2004).
97
The Unlawful Activities (Prevention) Amendment Ordinance 2004 (Ordinance 2 of
2004).
98
Section 3 of the Prevention of Terrorism (Repeal) Ordinance 2004 (Ordinance 1 of 2004).
LEGAL AND INSTITUTIONAL RESPONSES TO TERRORISM IN INDIA 367

executive Ordinance under article 123 of the Constitution. POTA has been, as
already mentioned, a balanced law to combat terrorism, providing some
safeguards to protect the rights of the accused. Yet the present government
that was responsible for all the previous enactments, brought a premature
end to POTA. It remains to be seen whether the amended Unlawful Activities
(Prevention) Act 1967 will be sufficient to tackle terrorism or whether the
Indian government will be able to live without a piece of legislation like
POTA, and if not, how terrorism legislation which might be enacted in the
future will differ from POTA.
18

Enacting security laws in Hong Kong
SIMON N. M. YOUNG




I. Introduction
This chapter outlines the events surrounding the resisted and, at times,
frustrated attempts to enact security laws in Hong Kong from 2001 to 2004.
It will be argued that the resistance was attributable to a number of factors,
the most important of which was the absence of a grassroots concept of
security, conceived in Hong Kong as a result of a genuine and informed
public consultation process. In respect of both the anti-terrorism and
national security initiatives, the misguided strategy of the government was
to impose a set of proposals at the outset, adopt a defensive attitude in the
consultation process, and make significant concessions at the final hour as
acts of appeasement. This chapter will conclude with a discussion of ideas for
developing a new implementation strategy that will take the discourse on
security in Hong Kong to a new level.



II. Initiatives to enact security laws 2001–2004
A. Security regime before September 11
While under British rule, seven of the major international treaties on terrorism
were extended to Hong Kong after ratification by the United Kingdom.1 The


I would like to thank Mark Fenwick, Michael Hor and Kent Roach for their comments on an
earlier draft.
1
See Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents (1973), extended on 2 May 1979;
International Convention Against the Taking of Hostages (1979), extended on 22 Dec.
1982; Convention on Offences and Certain Other Acts Committed on Board Aircraft
(1963), extended on 4 Dec. 1969; Convention for the Suppression of Unlawful Seizure of
Aircraft (1970), extended on 22 Dec. 1971, effective 21 Jan. 1972; Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), extended on
25 Oct. 1973; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation (1988), extended on 21 May 1997; Convention on the Marking
of Plastic Explosives for the Purpose of Detection (1991), extended on 28 April 1997.

368
ENACTING SECURITY LAWS IN HONG KONG 369

colonial government in turn implemented these treaties.2 It was never consi-
dered necessary to apply the general anti-terrorism laws enacted in the United
Kingdom to Hong Kong.
Following the resumption of sovereignty by China in 1997, Hong Kong’s
obligations under international instruments were to cease unless they continued
in accordance with the new constitutional framework of The Basic Law of the
Hong Kong Special Administrative Region of the People’s Republic of China
(‘Basic Law’).3 This framework was similar to the previous one in that treaty
obligations of China did not automatically apply to Hong Kong, but required a
separate decision by the Central People’s Government after seeking the views of
the Hong Kong government.4 Showing respect for Hong Kong’s high degree of
autonomy, the Basic Law made it possible for previous implemented interna-
tional agreements to continue their implementation even if China was not a
party to those agreements.5 After 1997 the seven anti-terrorism instruments and
their implementations were allowed to continue.6
Hong Kong also adhered to the anti-terrorism measures contained in
United Nations Security Council decisions made under Chapter VII of the
United Nations Charter. On 16 July 1997 Hong Kong’s Provisional
Legislative Council enacted the United Nations Sanctions Ordinance
(Cap 537) (UNSO), which gave the Chief Executive a lawmaking power
(using subsidiary legislation) for the purpose of implementing Chapter VII
sanctions.7 There were two main prerequisites to the exercise of this power.
First, there had to be instructions from the Central People’s Government to
implement such a sanction.8 This was consistent with the framework under
the Basic Law, which reserved matters of foreign affairs to the central


2
See Internationally Protected Persons and Taking of Hostages Ordinance (Cap 468),
originally Ord. No. 20 of 1995; Fugitives Offenders (Internationally Protected Persons
and Hostages) Order (Cap 503H), originally L. N. 205 of 1997; Aviation Security
Ordinance (Cap. 494), originally 52 of 1996; Fugitive Offenders (Safety of Civil Aviation)
Order (Cap 503G), originally L. N. 204 of 1997; Crimes Ordinance (Cap 200), Part VIIA,
originally Crimes (Amendment) Ordinance 1994, Ord. No. 52 of 1994.
3
Adopted by the 7th National People’s Congress at its Third Session on 4 April 1990 (‘Basic
Law’).
4
Basic Law, Art. 153. 5 Ibid.
6
At the time, China was a party to all of the instruments except for the Convention on the
Marking of Plastic Explosives for the Purpose of Detection (1991). The International
Convention for the Suppression of Terrorist Bombings (1997) was applied to Hong
Kong on 13 Nov. 2001.
7
The Ordinance was originally Ord. No. 125 of 1997, coming into operation on 18 July 1997.
Prior to 1 July 1997, Orders in Council made under English legislation (i.e. the United
Nations Act 1946) were used to extend Chapter VII sanctions to British colonies. These
Orders in Council were first made by Her Majesty in Council, then laid before the British
Parliament, and once published in the Hong Kong Gazette, had legal force in Hong Kong.
8
United Nations Sanctions Ordinance (Cap 537), s. 2(2) (‘UNSO’).
SIMON N. M. YOUNG
370

government.9 Secondly, the sanctions had to be ‘mandatory measures
decided by the Security Council of the United Nations, implemented against
a place outside the People’s Republic of China’ (emphasis added).10 These two
conditions were more than prerequisites since their satisfaction made it
mandatory for the Chief Executive to exercise the power.11 Strangely, regula-
tions made under this power, unlike normal subsidiary legislation, were not
subject to scrutiny by the Legislative Council of the Hong Kong Special
Administrative Region (‘LegCo’).12 As discussed below, it was the restrictive-
ness of this condition and also the second prerequisite that drew significant
criticisms from legislators in late 2002 in the course of implementing legisla-
tion in response to September 11.
Using the power conferred by the UNSO, Hong Kong passed a regulation,
the United Nations Sanctions (Afghanistan) Regulation (Cap 537K)
(UNSAR), to implement the economic sanctions against the then Taliban
regime in Afghanistan required by Security Council Resolution 1267
(R. 1267) adopted on 15 October 1999.13 This regulation, for the first time,
provided for the listing of individuals, groups, and property related to
the Taliban, who were designated by the Committee established by R. 1267,
in the Hong Kong Gazette for the purposes of enforcing the sanctions. When
the Security Council extended these sanctions on 19 December 2000 by
applying a general arms embargo to Taliban territory and against Osama
bin Laden and the al Qaeda organization, Hong Kong made a further regula-
tion to implement the extended sanctions.14
Overall, the Hong Kong measures against terrorism before September 11
were limited in terms of both the type of terrorist activity proscribed and the
persons targeted. There were no general criminal offences proscribing terror-
ists or terrorist activities. Indeed, no definition of terrorist or terrorist activity
was ever codified. There was no offence of financing terrorism. Terrorist acts
that did not come within any of the implemented offences were left to be
addressed by Hong Kong’s ordinary criminal laws, e.g. murder, kidnapping,
criminal damage to property, causing explosion likely to endanger, etc. The
listing of persons in the Gazette was restricted to Osama bin Laden and
members of the Taliban and the al Qaeda organization. Measures to cut off
the flow of funds to terrorists were restricted to these persons.

9
Basic Law, Art. 13. 10 UNSO, s. 2(1).
11
Ibid., s. 3(1) which provides that the ‘Chief Executive shall make regulations to give effect
to a relevant instruction’.
12
Normally, subsidiary legislation is subject to either positive or negative vetting according to
ss. 34 and 35, respectively, of the Interpretation and General Clauses Ordinance (Cap 1).
Subs. 3(5) of the UNSO provides that these sections are not to apply.
13
Originally L.N. 229 of 2000, which came into effect on or about 15 June 2000.
14
See United Nations Sanctions (Afghanistan) (Arms Embargoes) Regulation, L.N. 211 of
2001, which came into effect on or about 11 October 2001 and expired on 18 January 2002.
ENACTING SECURITY LAWS IN HONG KONG 371

B. Legal response to September 11 (Part I)
1. Two stage strategy to implementation
The Security Council’s first Chapter VII response to the September 11 attacks
was in Resolution 1373 (R. 1373), adopted on 28 September 2001. This
resolution required all states to implement measures against the financing
of terrorism generally and to cut off all forms of support to terrorists and
terrorist groups. On 16 January 2002, the Security Council adopted further
Chapter VII action in Resolution 1390 (R. 1390), which strengthened its
existing measures aimed at Osama bin Laden, members of the al Qaeda
organization and the Taliban, and all their controlled entities and associates.
Unlike other jurisdictions, Hong Kong did not respond urgently and rashly
with new anti-terrorism legislation after September 11. Since the matter con-
cerned ‘foreign affairs’, Hong Kong itself was not free to enact laws until it
received the relevant instructions from the central government, which were
reportedly given in October 2001.15 In late November 2001, the Security
Bureau presented a paper in a LegCo joint meeting between the Panel on
Administration of Justice and Legal Services and the Panel on Security outlining
measures to combat terrorism.16 During the course of the meeting, it became
apparent that the Administration had internally debated the possible legal
responses to September 11.17 As R. 1373 was a Chapter VII measure, one
might naturally have thought that the implementation would be by executive
regulations made under the UNSO. However, it was not possible to do this since
R. 1373, being a resolution adopted against terrorists anywhere in the world, did
not come within the second prerequisite condition of containing measures
‘implemented against a place outside the People’s Republic of China’.18 It was
decided that this would be the first Security Council sanction to be implemented
by ordinary legislation. Whether the Administration intended it or not, this was a
positive move since the use of the UNSO executive power would have bypassed
public scrutiny and the checks and balances of the legislative process. However,

15
Security Bureau, ‘[LegCo] Brief: [the Bill]’, SBCR 2/16/1476/74, 10 April 2002, para 2
(‘LegCo Brief’). This document and others from the Security Bureau or LegCo Secretariat
can be found on the LegCo website: www.legco.gov.hk.
16
See Security Bureau, ‘Measures to combat terrorism’, LC Paper No. CB(2)490/01–02(01)
for Joint Meeting of the Panels on Administration of Justice and Legal Services, Financial
Affairs and Security, 30 Nov. 2001.
17
See LegCo Secretariat, ‘Minutes of joint meeting held on Friday, 30 November 2001 at
10:45 am in the Chamber of the [LegCo] Building’, LC Paper No. CB(2) 916/01–02 for
LegCo Panels on Security and Administration of Justice and Legal Services, 8 January 2002
(‘Minutes of Joint Meeting’).
18
UNSO, above n 8, s. 2(1). In the Minutes of Joint Meeting, ibid., para 28, the Solicitor
General acknowledged this problem and made statements to the effect that the UNSO
would have to be amended if it was to be used to implement R. 1373.
SIMON N. M. YOUNG
372

as will be seen below, the UNSO was not completely out of the picture since it
was used to implement R. 1390.
In the November joint meeting, the Secretary for Security, Regina Yip,
announced the two-stage strategy to implementation.19 In the first stage, the
‘essential elements’ of R. 1373 were to be implemented in a new bill to be
introduced in late February 2002.20 The Administration later identified the
‘essential elements’ as paragraphs 1(a), (b), (c), (d) and 2(a) of R. 1373, which
generally related to the financing and material support of terrorism and freezing
of terrorist funds.21 Added to the first stage was the implementation of
Recommendations II, III and IV of the Special Recommendations of the
Financial Action Task Force on Money Laundering (FATF).22 While these
recommendations overlapped somewhat with R. 1373, they widened the scope
of implementation with new duties related to confiscating terrorist assets and
reporting suspicious transactions related to terrorism.23 In the second stage, the
Administration was intending to implement the less urgent ‘non-mandatory
elements’ of R. 1373 and other international conventions against terrorism, and
to ‘give full effect to the FATF’s Special Recommendations’.24
While the Administration had planned to introduce legislation in late
February 2002, it was not until 17 April 2002 that the United Nations (Anti-
Terrorism Measures) Bill was first read in LegCo.25 Apparently, the drafting of
the Bill had ‘taken more time than expected’.26 Unfortunately, as it would turn
out, this delay took away a critical amount of time for legislators and the public
to scrutinize the Bill. The government was determined to pass the legislation by
June 2002. There appeared to be three other reasons for this urgency. First, the
FATF had imposed a deadline of June 2002 for countries to comply with its
Special Recommendations on terrorist financing. Failure to comply could have
resulted in countermeasures from FATF members. As Hong Kong held the
Presidency of the FATF during this period, it would have been very embarrassing
and a poor example for other countries if it did not comply with this deadline.27

19
Minutes of Joint Meeting, ibid., para 3. 20 Ibid., paras 3, 9.
21
LegCo Brief, above note 15, para 4. 22 Ibid.
23
On 28–30 October 2001, the FATF held an extraordinary plenary meeting on the financ-
ing of terrorism, which led to eight Special Recommendations. See the FATF website:
http://www1.oecd.org/fatf/. Hong Kong has been a member of the FATF since 1990. It
held the Presidency in 2001–2002.
24
LegCo Brief, above note 15, para 4.
25
The Bill was gazetted on 12 April 2002. See the Government of the HKSAR Gazette website
at http://www.gld.gov.hk/cgi-bin/gld/egazette/index.cgi?lang ÂĽ e&agree ÂĽ 0.
26
See reply of Secretary for Security in LegCo Secretariat, ‘Minutes of special meeting held
on Tuesday, 5 February 2002 at 8:30 am in the Chamber of the [LegCo] Building’, LC
Paper No. CB(2) 1478/01–02 for LegCo Panel on Security, 25 March 2002, para 30.
27
The Security Bureau described the consequence for Hong Kong as ‘serious reputational
risk as the FATF may publicly announce the jurisdictions which fail to comply with certain
Special Recommendations’. It went on to say that this would ‘reflect badly on HKSAR
ENACTING SECURITY LAWS IN HONG KONG 373

Secondly, China had reported to the Counter-Terrorism Committee
(CTC), established by R. 1373, on 22 December 2001 that Hong Kong
would soon be enacting legislation to implement R. 1373.28 The CTC replied
with preliminary comments on the report and a request ‘to provide a
response in the form of a supplementary report by 24 June 2002’.29 As it is
unusual for China to accept United Nations reporting obligations, it would
have been a loss of face if by June 2002 it could not report back to the CTC
that concrete measures had been enacted in Hong Kong. China eventually
provided its supplementary report in a letter dated 17 July 2002, five days
after the Bill had passed through LegCo.30
Thirdly, China itself had implemented R. 1373 by enacting anti-terrorism
laws for the mainland in late December 2001.31 It would have greatly dis-
pleased China if the Hong Kong authorities had excessively delayed the
implementation of R. 1373, especially since the instruction to Hong Kong
was issued in October 2001.32 As discussed below, these three reasons were
the source of an immense amount of pressure to have the legislation passed
before the 2002 summer recess.

2. United Nations (Anti-Terrorism Measures) Ordinance
(UNATMO)33
a. The Process There is no doubt that the pressure to pass the Bill in less
than three months resulted in faulty legislation. Indeed, the second stage of
implementing anti-terrorism laws, which began in May 2003, was partly
devoted to correcting the flaws in the UNATMO. The Bills Committee for
the Bill met for the first time on 17 May 2002. Although the Bills Committee
managed to hold fifteen meetings before the Bill was passed by LegCo on
12 July 2002, the last twelve meetings were packed within a period of 24 days,
leaving on average a day between each meeting. No wide public consultations



especially given our leading role as the President of the FATF’. See ‘[the Bill]’, Paper No.
CB(2)1930/01–02(03) for the Bills Committee on [the Bill], 17 May 2002.
28
Jeremy Greenstock, ‘Letter dated 27 December 2001 from the Chairman of the [CTC]
addressed to the President of the Security Council’, UN Doc. S/2001/1270, Annex.
29
Jeremy Greenstock, ‘Letter dated 10 April 2002 from the Chairman of the [CTC]
addressed to the President of the Security Council’, UN Doc. S/2002/399.
30
Jeremy Greenstock, ‘Letter dated 31 July 2002 from the Chairman of the [CTC] addressed
to the President of the Security Council’, UN Doc. S/2002/884, Annex.
31
See the Government of China’s supplementary report in the Annex to Jeremy Greenstock,
‘Letter dated 4 January 2002 from the Chairman of the [CTC] addressed to the President
of the Security Council’, UN Doc. S/2001/1270/Add.1.
32
As these instructions have never been revealed, it is not clear if the Chinese authorities
imposed any deadline or timetable for implementation.
33
Originally Ord. No. 27 of 2002. Partly in operation on 23 August 2002, see L.N. 137
of 2002.
SIMON N. M. YOUNG
374

were held on the Bill. While various public interest groups, media and
business associations, legal academics and legal professional groups were
invited to make written submissions, only two meetings were held to receive
deputations from invited persons and groups.34
A common criticism amongst the commentators was the insufficient
amount of time the government had allowed for review of the original Bill
and the many proposed amendments that were being made. For example, in
its written submission the Hong Kong Bar Association deplored ‘the lack of
proper time for full public consultation on the Bill when there is obviously no
urgency to enact any anti-terrorist legislation in Hong Kong’.35 From as early
as the seventh meeting on 17 June 2002, the Administration began introdu-
cing a set of committee stage amendments (CSAs) that were constantly being
updated and altered. The manner in which these amendments were being
proposed, considered and modified was chaotic. Commentators were not
properly informed of the latest changes to the proposed CSAs.36 These
sudden changes to rashly formulated proposals frustrated persons participat-
ing in the process.
The legislators who sat on the Bills Committee repeatedly criticized the
government’s moves to rush the Bill through LegCo. The following translated
excerpt from legislator Audrey Eu’s speech in the final debates captures the
frustration felt by the Bills Committee members at the time:
Actually, over the past one and a half months, Members have worked non-
stop to scrutinize the Bill, convening 15 meetings in total. If my reckoning
is correct, the Administration has submitted more than 10 revised drafts.
Last Wednesday, when the last meeting of the Bills Committee was held, the
Government could not submit a printed version of the finalized draft in
time, and so, the draft had to be dictated to Members at the meeting, and
Members were required to submit their amendments to the Government’s
finalized draft before midnight that day. This shows that the Bills
Committee has never had any opportunity to discuss the Bill and submit
appropriate amendments. It is extremely irresponsible, Madam President,


34
See LegCo Secretariat, ‘Minutes of the second meeting held on Monday, 3 June 2002 at
8:30 am in the Chamber of the [LegCo] Building’, LC Paper No. CB(2)2323/01–02 for
Bills Committee on the Bill, 17 June 2002, and LegCo Secretariat, ‘Minutes of the 10th
meeting held on Tuesday, 25 June 2002 at 8:30 am in Conference Room A of the [LegCo]
Building’, LC Paper No. CB(2)2880/01–02 for Bills Committee on the Bill, 7 Oct. 2002.
35
See Hong Kong Bar Association, ‘Submissions on [the Bill]’, LC Paper No. CB(2)2548/
01–02(01) for the Bills Committee on the Bill, 9 July 2002, para 5. To the same effect, see
submissions of JUSTICE in ‘[The Bill]: Main Points and Suggested Draft Amendments’,
LC Paper No. CB(2)2390/01–02(01) for the Bills Committee on the Bill, June 2002, p 1.
36
See generally Simon Young, ‘Hong Kong’s Anti-Terrorism Measures Under Fire’,
Occasional Paper No. 7 (Hong Kong: Centre for Comparative and Public Law, 2003)
8–10, which can be found at www.hku.hk/ccpl.
ENACTING SECURITY LAWS IN HONG KONG 375

to handle a bill like the anti-terrorism Bill, which is so very complicated in
nature and extensive in implications.37

On the day of the ninth meeting in the Bills Committee, i.e. 24 June 2002,
the government, somewhat high-handedly, gave notice to resume the second
reading of the Bill on 10 July 2002.38 This was done even though it was clear
that the work of the Bills Committee was incomplete and members of the
Committee objected to such notice being given.39 This move was like adding
fuel to the already fired atmosphere of the Committee. Three days later, in a
show of protest, the Bills Committee passed, without objection, the following
motion proposed by legislator Cyd Ho:
That this Bills Committee expresses deep regret that the Executive has given
notice to resume the Second Reading debate on the United Nations (Anti-
Terrorism Measures) Bill on 10 July 2002 before scrutiny of the Bill has
been completed, which is at variance with the established practice of the
Legislative Council.40

The so-called ‘embarrassing hiccup’ with the enactment of the terrorist
recruitment offence was symbolic of the defects resulting from the rushed and
unconsidered passage of the Bill.41 The original proposal made it an offence
for a person to ‘become a member of, or begin to serve in any capacity with, a
person specified in a notice’.42 This offence was drawn so broadly that it could
have included the family members of the specified person and anyone pro-
viding a service to that person, including his or her legal counsel or someone
as innocuous as a laundry delivery person. It was also problematic because it
lacked express mens rea requirements. The government acknowledged these
problems and prepared committee stage amendments to address some of
them.43 The embarrassing moment occurred in the Council meeting when
due to a dinner break there were an insufficient number of legislators who

37
Official Record of Proceedings of the Legislative Council of the Hong Kong Special
Administrative Region (‘HK Hansard’), 11 July 2002, 8863–4 (translated from Cantonese).
38
Legislators questioned whether there had been a breach of R. 54(5) of the LegCo Rules of
Procedure, which required consultation with the chairman of the House Committee
before effective notice could be given. See LegCo Secretariat, ‘Minutes of the 29th meeting
held in the [LegCo] Chamber at 2:30 pm on Friday, 28 June 2002’, LC Paper No. CB(2)
2490/01–02 for House Committee of the [LegCo], 25 Sept. 2002, para 78–120.
39
Ibid., para 99.
40
See LegCo Secretariat, ‘Minutes of the 11th meeting held on Thursday, 27 June 2002 at
8:30 am in Conference Room A of the [LegCo] Building’, LC Paper No. CB(2)2881/01–02
for the Bills Committee on the Bill, 7 Oct 2002, para 2.
41
See Ambrose Leung, Angela Li and Alyssa Lau, ‘Embarrassing hiccup for terror bill’, South
China Morning Post, 12 July 2002.
42
Bill, above note 25, clause 9(1)(b).
43
LegCo Secretariat, ‘Report of the Bills Committee on [the Bill]’, LC Paper No. CB(2)2401/
01–02 for House Committee meeting on 28 June 2002, para 44.
SIMON N. M. YOUNG
376

supported the government’s amendment.44 A competing amendment pro-
posed by legislator Margaret Ng aimed at narrowing the provision even more
was also defeated. After the absent legislators had returned, there was little
choice for the government supporters but to accept the original proposal,
which even the government acknowledged was faulty. The enacted proposal
contained another obvious anomaly in that it referred only to persons
specified by the Chief Executive and not to those specified by court order,
which was a second form of specification added only in the CSAs.45
Subsequently, the Administration stated that the provision would not be
brought into operation until it was corrected in the second stage of
implementation.46

b. The Substance In formulating its proposals, the Administration stated
that it was adopting a ‘minimalist approach’ to implementing R. 1373.47 To
some extent, this was true. The Bill was relatively short, with only nineteen
clauses and three schedules, spanning only twenty-two pages in the Gazette.
Except in one respect, the proposals stayed within the aims and purposes of
R. 1373 and the FATF Special Recommendations. None of the controversial
detention powers or provisions affecting fair trial rights, as seen in other
countries such as the United States and Canada, were proposed.48
Nevertheless, the original proposals were often drawn in such broad terms
without sufficient safeguards or clear limits that their impact on human
rights seemed far from minimal.
One of the most pressing concerns with the proposals was the risk that the
new specification system might be used to marginalize groups, such as the Falon
Gong, that China had branded as ‘terrorists’ or counter-revolutionaries.49
Whether this was possible turned on how ‘terrorist act’ was defined in the Bill
since the definitions of ‘terrorist’, ‘terrorist associate’ and ‘terrorist property’
were all based on the concept of ‘terrorist act’. The definition in the original Bill



44
See HK Hansard, 11 July 2002, above note 37, 8990–9004; ‘Embarrassing hiccup for terror
bill’, above note 41.
45
See UNATMO, above note 33, s. 10.
46
Legal Services Division, ‘Legal Service Division Report on Subsidiary Legislation Gazetted
on 23 August 2002’, which is Annex III to LegCo Secretariat, ‘Paper for the House
Committee Meeting on 4 October 2002’, LC Paper No. LS 131/01–02 for House
Committee, 2 Oct. 2002.
47
Security Bureau, ‘Legislative Proposals to Implement Anti-terrorism Measures under
United Nations Security Council Resolution (UNSCR) 1373’, LC Paper No. CB(2)1021/
01–02(01) for LegCo Panel on Security, January 2002, para 5.
48
See, in this volume, Roach, Chapter 23; Fenwick and Phillipson, Chapter 21; Banks,
Chapter 22.
49
Minutes of Joint Meeting, above note 17, para 6(b).
ENACTING SECURITY LAWS IN HONG KONG 377

together with the superimposed changes in the final enacted definition is shown
below:
‘terrorist act’
(a) subject to paragraph (b), means the use or threat of action where–
(i) the action (including, in the case of a threat, the action if carried
out) –
(A) involves causes serious violence against a person;
(B) involves causes serious damage to property;
(C) endangers a person’s life, other than that of the person com-
mitting the action;
(D) creates a serious risk to the health or safety of the public or a
section of the public;
(E) is designed intended seriously to interfere with or seriously to
disrupt an electronic system; or
(F) is designed intended seriously to interfere with or seriously to
disrupt an essential service, facility or system, whether public
or private; and
(ii) the use or threat is–
(A) designed intended to influence compel the Government or to
intimidate the public or a section of the public; and
(B) made for the purpose of advancing a political, religious or
ideological cause;
(b) in the case of paragraph (a)(i)(D), (E) or (F), does not include the use
or threat of action in the course of any advocacy, protest, dissent or
stoppage of work industrial action.50
As shown by the amendments, the original definition used imprecise language,
such as ‘involves’ and ‘designed’, unfamiliar to the criminal law. Legislators also
felt that the exception clause for legitimate protest and dissent had to be extended
to other non-directly violent forms of terrorism.51 Despite these improvements to
the original definition, there was one issue that the administration and legislators
could not agree on. Margaret Ng, one of the main critics of the Bill and legislative
process, proposed that the definition of ‘terrorist act’ should not include threats of
action.52 It was argued that this made the definition unjustifiably broad as it could
catch merely mischievous behaviour.53 Threats and other inchoate harm were
already caught by the definition of ‘terrorist’, i.e. a ‘person who commits, or
attempts to commit, a terrorist act or who participates in or facilitates the
commission of a terrorist act’.54 The Secretary for Security, however, insisted


50
See Bill, above note 25, clause 2(1); UNATMO, above note 33, s. 2(1).
51
LegCo Secretariat, ‘Report of the Bills Committee on [the Bill]’, LC Paper No. CB(2)2537/
01–02 for House Committee, 9 July 2002, paras 12–17 (‘UNATMO Report’).
52
HK Hansard, 11 July 2002, above note 37, 8916–18. 53 Ibid.
54
UNATMO, above note 33, s. 2(1).
SIMON N. M. YOUNG
378

on keeping the threat component mainly because other countries had it in their
definition and threats of terrorist acts would inevitably cause public panic.55
The original proposed specification system contributed to concerns that it
could be misused against certain groups. The original proposal gave the Chief
Executive the exclusive power to specify persons and property as ‘terrorists’,
‘terrorist associates’ or ‘terrorist property’ on reasonable grounds to
believe.56 Once a person or property was specified and gazetted, the person
or property was presumed to be a terrorist, terrorist associate, or terrorist
property, as the case may be, until proven to the contrary. It was left to
persons specified to bring proceedings in the Court of First Instance to
contest the specification. Without a system of prior judicial authorization,
there was a real concern that Beijing might try to influence the Chief
Executive on what individuals and groups to specify.
To the government’s credit, it accepted these criticisms and revamped the
system by introducing a number of safeguards.57 While specification by the
Chief Executive was maintained, it was restricted to only persons and prop-
erty already specified by a United Nations sanctions committee.58 If other
persons or property were to be specified, it had to be by the Chief Executive’s
application to the Court of First Instance.59 There were further judicial checks
on this second form of specification by way of review and appeal.60 Another
safeguard that was added was a compensation provision for persons wrongly
specified.61 But one of the threshold preconditions for obtaining compensa-
tion required the court to be satisfied that ‘there has been serious default on
the part of any person concerned in obtaining the relevant specification’.62 To
many legislators and commentators critical of the Bill, this threshold was so
high that it essentially nullified the provision.63 Until recently, the govern-
ment has always held that the threshold is appropriate to cap government
expenditure and also because it is the same standard as for the compensation
provisions in Hong Kong’s money laundering laws.64
Specification facilitates the freezing and forfeiture of terrorist property, which
under the Bill (later accepted unchanged in the UNATMO) was defined as:
(a) the property of a terrorist or terrorist associate; or
(b) any other property consisting of funds that–
( i) is intended to be used to finance or otherwise assist the commission of
a terrorist act; or
(ii) was used to finance or otherwise assist the commission of a terrorist act.65

55
HK Hansard, 11 July 2002, above note 37, 8912–8914. 56 Bill, above note 25, clause 4.
57
See UNATMO Report, above note 51, paras 29–38. 58 UNATMO, above note 33, s. 4.
59
Ibid., s. 5. 60 Ibid., ss. 2(7), 17. 61 Ibid., s. 18. 62 Ibid., s. 18(2)(c).
63
See criticisms in UNATMO Report, above note 51, paras 83–91.
64
HK Hansard, 11 July 2002, above note 37, 9045–6.
65
See Bill, above note 25, clause 2(1); UNATMO, above note 33, s. 2(1).
ENACTING SECURITY LAWS IN HONG KONG 379

By virtue of the first limb of the definition, ‘terrorist property’ was defined
very broadly. The first limb presumptively tainted all property connected to
the terrorist or terrorist associate; in other words, there was no need to show
that the property was in fact crime tainted. In the Bill, it was proposed that the
Secretary for Security would have the exclusive power to freeze funds that
were terrorist property, subject to subsequent review by a court.66 A scheme of
executive freezing was controversial not only because of the absence of prior
judicial scrutiny but also because it deviated from the general approach under
Hong Kong’s money laundering laws of obtaining court orders to restrain
suspected proceeds of crime.67 Ultimately, the government insisted upon
maintaining the scheme on grounds that urgency and swift action required
executive control.68 It was moderately mitigated by added safeguards such as
the power of the Secretary for Security and of the courts to grant a licence to
release frozen funds to pay reasonable living and legal expenses, the reduction
in the time limit of a freeze notice from three years to two years, and the need to
show a ‘material change in the grounds’ if an application was made to re-freeze
previously but no longer frozen funds.69
The scheme of forfeiting terrorist property was also somewhat unique to
Hong Kong because it involved civil forfeiture, i.e. it was not predicated on a
criminal conviction; the standard of proof was the civil standard, and hearsay
evidence was admissible.70 One important safeguard of this scheme was that
not all terrorist property was forfeitable. It had to be shown to have some
connection to crime, which was true for the second limb of the definition but
not for the first. Merely being property of a terrorist or terrorist associate was
insufficient for forfeiture; it also had to be property which:
i. in whole or in part directly or indirectly represents any proceeds arising
from a terrorist act;
ii. is intended to be used to finance or otherwise assist the commission of a
terrorist act; or
iii. was used to finance or otherwise assist the commission of a terrorist act.71



66
Bill, ibid., clause 5.
67
See Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405), s. 10 (‘DTROPO’);
Organized and Serious Crimes Ordinance (Cap 455), s. 15 ( ‘OSCO’). An exception is seen
in Part IVA of the DTROPO, which allows a limited warrantless power to seize money
suspected to be proceeds of drug trafficking going across the border.
68
See Security Bureau, ‘Summary of Written Submissions and the Administration’s
Response’, Paper No. CB(2)2424/01–02(04) for Bills Committee on the Bill, 26 June 2002.
69
See HK Hansard, 11 July 2002, above note 37, 8945–8947.
70
Civil forfeiture does exist on a limited basis in Part IVA of the DTROPO, above note 67.
On the use of such powers in other countries, see Davis, Chapter 9, in this volume.
71
UNATMO, above note 33, s. 13(1)(a).
SIMON N. M. YOUNG
380

One of the implications of this narrower forfeiture power is that the power to
freeze is more extensive than the power to forfeit, since the former applies to
all terrorist property in the form of funds. This raises the issue of the
legitimacy of allowing the government to hold on to property that it cannot
forfeit. Ultimately, this is an issue of whether the first limb of the ‘terrorist
property’ definition is too broad.
Another area of great controversy in the Bills Committee was the enactment of
new criminal prohibitions.72 The fiasco concerning the terrorist recruitment
offence has already been mentioned.73 There were five other new criminal
prohibitions. Two of the new provisions concerned the financing of terrorism
and appeared to overlap each other substantially, leaving one to wonder if more
time should have been given to their formulation. The first was concerned with
providing or collecting funds to be supplied or otherwise used by a person
known or reasonably believed to be a terrorist or terrorist associate.74 The second
was concerned with making funds or financial (or related) services available to or
for the benefit of a person known or reasonably believed to be a terrorist or
terrorist associate.75 A third provision prohibiting the supply of weapons to
terrorists was relatively uncontroversial.76
One debated issue that was common to all three offences was the repeated
use of the mens rea standard of has or having ‘reasonable grounds to believe’,
a standard that appears five times in these three provisions.77 It is contro-
versial since Hong Kong courts have interpreted it as an objective standard.
Having actual belief is not required; it is enough if sufficient objective
grounds for the belief exist and one is aware of those objective grounds.78
Calls for a purely subjective standard were rebuffed by the Administration
primarily on the basis that the standard was well established in Hong Kong’s

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