Livingston Thompson, Guest columnist PRIME MINISTER P.J. Patterson has said he would like to see the Terrorism Prevention Act, 2003 fully promulgated by March 2004, so that Jamaica would be seen by the United Nations to be co-operating with the measures to prevent terrorism. In this article I want to look at some aspects of the Act.
THE MEANING OF TERRORISM
A fundamental assertion in the 79-page Act is that a terrorist act must have a political, religious or ideological objective, which is directed at:
(a) intimidating the public, or a segment of the public, with regard to its security including its economic security; or
(b) compelling a person, a government or a domestic or an international organisation to do or to refrain from doing any act, whether the person, government or organisation is inside or outside Jamaica.
The intimidation or compulsion may be an act or an omission, which being intentionally committed
(i) results in the death or serious bodily harm to the individual,
(ii) endangers a person's life,
(iii) causes substantial damage to public or private property,
(iv) causes serious interference or disruption of public or private essential services.
The difficulty with the idea of intimidating the public or a segment of the public is the question of what is meant.
The most intimidating conduct that I have witnessed by a group of persons is the conduct of party supporters travelling in a political motorcade during a general election campaign. Although I only heard of the damage to property, I certainly felt that life and the lives of people in the buses were endangered.
INTERPRETATION
Could I appeal to the provisions of this Act for the persons to be charged with terrorism or would a number of persons like myself have to testify to having been endangered? Clearly, supporters of a political party intentionally carried out the conduct. This interpretation is not mitigated by the fact that the Act attempts to make a distinction between an act of terrorism and a lawful advocacy, protest, dissent or stoppage of work, which do not involve activities intended to result in the situations referred to in the paragraph above. However, the Government will want to look again at this aspect of the bill, which is part of what is being perceived as an attempt to stifle legitimate protest.
Mind you, I am delighted by the fact that the burning of tyres and the blocking of roads and the wilful destruction of property by mobs are now to be construed as acts of terrorism. I have never been able to appreciate the logic of those actions.
TERRORISM AND THE SECURITY FORCES
There is an effort in the Act to ensure that armed conflicts or actions of the military or state, which conform to rules governing international law, are not construed as acts of terrorism. Nevertheless, given the propensity of our security forces to become engaged in questionable acts, the challenge they will have under this Act is to show that they are not acting as terrorists. If the unlawful acts of intimidation, the endangerment of life and the destruction of property, which are believed to be part of the modus operandi of the police, can be shown to have an ideological or political motive, they could be charged with terrorism. I am sure Mr. Wilmot Perkins will be happy for this provision because he has been asserting that certain actions of the police are outside the boundaries of international law. The Act seems to allow that he could make a case for terrorism against the police.
TERRORIST BY ASSOCIATION
In making a determination of whether an accused has participated in a terrorist act, the Act allows the Supreme Court to consider a number of things, including uses of names, symbols and other things that can be associated with a group. However, it is possible under the present provision of the Act for an individual to be charged with facilitating an act of terrorism, "whether or not the accused knows the identity of any of the persons who constitute the terrorist group."
Evidently, it is imagined that it is possible for someone to be in collusion with a person or persons with terrorist intent, without having an idea of whom the partners in the crime are. Under the proposal, the Supreme Court will not need to demonstrate that the accused has any knowledge of the personalities involved in the terrorist act. Here again the Government may want to revisit the bill because it seems unreasonable to link someone with perpetration of an act of terror, if in the mind of the individual the personalities behind a terror group are neither known to them nor known to exist. Provisions similar to this in laws in England and the United States make for significant violation of human rights. The Government of Jamaica is not under any compulsion to follow those countries down that road.
THE RIGHT OF CONCEALMENT
The Act allows for two instances in which information relating to a terrorist offence may be concealed from a constable. One is where it can be shown that the individual had reasonable grounds for not making the disclosure. This would include, for example, a situation where in the course of his or her duty in the bank an employee gets a sense that a terrorist act is about to be committed but rather than reporting it to the police reports it to a senior bank official, providing that is the procedure established by the bank for reporting such matters. The other instance is where an attorney-at-law receives information in preparing to make a defence for a client who may be accused. It is important for priest and pastors to know that under the present draft they are not immune from prosecution if they are known to have information relating to terrorism as it is described in the Draft. The pastor or priest can be charged as terrorist by omission for failing to disclose to the police in a reasonable time, information that may have a bearing on terrorist activity. There is in fact a de facto presumption of suspicion of the role that a pastor or priest may play in the normal course of their duties.
The onus on the lawmakers in this country is to ensure that the Terrorism Prevention Act cannot be abused on political, religious or ideological grounds. Unfortunately, in its present form that guarantee seems to be lacking. Therefore, a careful revision of the proposals seems to be an imperative.
Rev. Dr. Livingstone Thompson is
president of the Executive Board of the Moravian Church in Jamaica.
