Possible Constitutional Objections to the Powers to Ban ‘Terrorist’ Organisations (original) (raw)
Related papers
The Proscription or Listing of Terrorist Organisations
Terrorism and Political Violence, 2018
This article serves as an introduction to this Special Issue on the banning or proscription of terrorist organisations around the world. It begins by arguing for greater attention to proscription powers because of their contemporary ubiquity, considerable historical lineage, implications for political life, and ambiguous effectiveness. Following an overview of the Issue’s questions and ambitions, the article discusses five themes: key moments of continuity and change within proscription regimes around the world; the significance of domestic political and legal contexts and institutions; the value of this power in countering terrorism and beyond; a range of prominent criticisms of proscription, including around civil liberties; and the significance of language and other symbolic practices in the justification and extension of proscription powers. We conclude by sketching the arguments and contributions of the subsequent articles in this Issue.
Terrorism and Political Violence
This article serves as an introduction to this Special Issue on the banning or proscription of terrorist organisations around the world. It begins by arguing for greater attention to proscription powers because of their contemporary ubiquity, considerable historical lineage, implications for political life, and ambiguous effectiveness. Following an overview of the Issue's questions and ambitions, the article discusses five themes: key moments of continuity and change within proscription regimes around the world; the significance of domestic political and legal contexts and institutions; the value of this power in countering terrorism and beyond; a range of prominent criticisms of proscription, including around civil liberties; and the significance of language and other symbolic practices in the justification and extension of proscription powers. We conclude by sketching the arguments and contributions of the subsequent articles in this Issue.
Constitutional governance and special powers against terrorism
How should Liberal democracies respond to campaigns of political violence? Such states do have the right to defend themselves, provided they adhere to principles of constitutional governance. This article explains and then tests these principles against the special powers of exclusion under the United Kingdom's Prevention of Terrorism Acts. It then considers controls and reviews by all branches of the state: judicial, executive, and legislative. The analysis concludes that the task of constitutional governance can only be achieved by all branches working in concert. To date, too much faith has been placed in judicial mechanisms and too little attention has been given to intervention by the legislature and other political mechanisms.
Proscription is principally deployed as a means to (i) signal government’s disapproval of the ideas of an organisation deemed to be involved in terrorism, and (ii) empower policing and security agencies to dismantle the organisation’s capacity to further those ideas by confiscating resources, financial or otherwise, and prohibiting membership of the association. Yet, while there is a long history of the use of proscription powers in Australia and elsewhere, the legal and policy rationale for banning terrorist organisations has not kept pace with the evolving dimensions of international migration, domestic extremism, and political violence. In this submission, we put forward an alternative framework of proscription that seeks to mitigate some of the concerns that have been raised regarding the transparency, appropriateness and ‘heavy-handedness’ of current proscription powers. It is our view that proscription should be just one of a raft of instruments to tackle extremist violence associated with organisations. It is well-understood that extremism is an area of some subjectivity, particularly with regard to legal definitions of terrorism and organisation and the practical implications for proscription that follow. The framework put forward here seeks to provide government with a range of instruments that enhance the ability of government to (i) clarify whether an organisation is, in fact, oriented towards undertaking or supporting extremist violence; (ii) determine what sanction, if any, is appropriate; (iii) diminish the capacity of organisations to use or support the use of violence.
Terrorism and the law: Historical contexts, contemporary dilemmas, and the end(s) of democracy
Crime Law and Social Change, 1996
Recent proposals by the G7 (and Russia) to clamp down on “terrorists” and “terrorism” do not define that which is prohibited. Instead, a threat is communicated which in turn allows, among other things, greater attention to be paid officially to “camouflage” charities and “terrorist” use of the Internet. Nevertheless, it is somewhat of a truism to note that terrorist violence
Reaching an agreed definition of terrorism has proved problematic, with over 100 different working definitions counted. Consensus stumbles particularly on issues of legitimacy, assessing reasons behind the violence and whether a state can commit acts of terrorism-or whether they are to be excluded as they have the monopoly on legitimate violence. Greater empirical research and independence in terrorism scholarship is required to formulate an agreed definition. States should not be exempt from terrorism as part of a broader movement excluding any consideration of the motives or causes cited as the reason for the attack. The definition should focus on the nature of the act, not the philosophy behind it. For even if the cause or grievance is understandable, and can be reasonably argued with a defence of necessity, that does not mean the violence undertaken should cease to be illegal and inhumane. The ends must be separated from the means. Clarity of definition is crucial for counter-terrorism efforts and the protection of civil liberties. Over-zealous recourse to draconian legislation peddled to prevent terrorism has qualified the rights of citizens, not only reducing their ability to hold their government to account, but also imposing laws that have the potential to work as a tool for terrorist recruitment rather than counter-terrorism.
This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security.
The Proscription of Terrorist Organisations in Australia
Federal Law Review, 2009
Crime and Politics' in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the 'War on Terror' (2008) 297, 308. Additionally, we acknowledge the drawbacks clearly identified by Clive Walker in respect of the United Kingdom's proscription of the Irish Republican Army in his seminal study The Prevention of Terrorism in British Law (1986) 50-1. 13 Ben Golder and George Williams, 'What is "Terrorism"? Problems of Legal Definition' (2004) 27 University of New South Wales Law Journal 270. 14 Saul reports that, on available evidence in 2004, 86 nation states prosecuted terrorism as an ordinary crime, while 46 employed 'simple terrorism offences' and a further 48 had 'composite terrorism offences': Ben Saul, Defining Terrorism in International Law (2006) 264-9. Additionally, significant strides have been made in the last decade in producing a general definition of 'terrorism' in international law: