The High Court ruling was wrong
One requires no esoteric legal knowledge to ascertain that the recent high court decision to nullify clauses within the security bill, is not in keeping with the international efforts to fight terrorism.
In the ‘9/11 era’ citizens globally, have accepted a shift in the delicate balance between freedom and security, as governments put in place necessary regulations to provide for counter terrorism powers and offences.
With the underlying intent of ensuring terror attempts are successfully foiled and terrorists are kept behind bars, these regulations are have often been broad so as to avert any potential loopholes. This resolve to fortify the security of citizens explains why the Security Bill cast its net wide. However, in doing so, the legislation increases the tendency for absurdities to arise in the application of its provisions. It is these possible absurdities that form the premise for any rational resistance to the bill.
A lawyer for a terrorism suspect might be charged under the act for ‘advising’ a terrorist, for instance. A classic example of the very happenstance that statutory interpretation by the judiciary is designed to mitigate. By this week’s ruling, the courts are in essence admitting they cannot give effect to the intentions of the drafters of the legislation. We as citizens must be concerned with the courts inability to apply the law.
Terrorism is a multifaceted and highly complex criminal operation involving intricate transnational cells which facilitate financing, training camps and support networks. The obscurities of terrorism pose new challenges and require new thinking, new approaches, and new strategies to thwart what is inherently, ideological warfare.
It is incongruous that the courts deem it practical that counter-terrorist activities such as detention procedures, interrogation and the gathering of intercept evidence should be governed by the rules of criminal procedure, just as they would be in a non-terrorism context.
The ruling of the high court is riddled with irony. A case in point being the annulment of section 12 which places reasonable limitations on media houses broadcasting content considered to undermine investigations and security operations relating to terrorism. Courts themselves place restrictions on the media and in turn ‘press freedom’ if information propagation is judged to prejudice an ongoing case. One needn’t be a wary logician to reason that if court proceedings can be hampered by the media dissemination of information, then investigations concerning national security can too – with irreconcilable consequences.
At this juncture, it would be a detrimental oversight to not point out the undemocratic character of the Court’s decision. Not in the decision itself, but in negating the will of the people as manifested by the legislature in passing the bill. The legislature as an elected organ of government, is simply more legitimate, egalitarian and participatory than appointed judges. In overruling the actions of elected officials, the court frustrates the intentions of a democratic government.
Fortunately, there exists a supreme court, and for those obstructing efforts to counter terrorism, this ruling will be an ephemeral victory.