Rule of Law and Cow Story

It is very surprise to observe some people do not understand the actual objectives of law. Many thought that law is supreme.

Of course, yes.

But please mind, even the law has its' rules. No one should be above law. If you don't respect the law, then, the whole system will collapse.

The purpose of the law is to make sure the system which governs the people function effectively. Therefore the system further created the doctrine of separation of powers to check and balance on each others.

And with what happenings in our country, there are tendencies seem that people who should respect and observe these principles, fail to execute duties for the sake our country and people.

Cow business or any other business must always benefit the people as the whole. Otherwise there no purposes to engage such business.

To conclude, the effectiveness of the natural law will always prevails against the odds.

Thank you and blog to you again.

The Rule of Law and Terrorism: The Critical Implications of a New National Debate

It was a distinct honor and privilege to serve the Department of Justice for almost two years. By the way, my two years must have been dog years because it feels like I was at Justice for at least 6 years.

But my experience in the Department was in many ways very satisfying. I served during some truly historic times as the Department had to play a critical role in dealing with the terrorist attacks of 9-11 and take lead in helping to restore our financial markets following the spate of corporate scandals that started with the Enron bankruptcy. As a former prosecutor and white-collar defense lawyer, the corporate fraud work was near and dear to my heart. I believe the Department's vigorous criminal enforcement in the corporate and financial areas has played a critical role in our market economy and perhaps helped stave off a wave of potentially unnecessary and unhelpful regulation.

But it was the work on the terrorism front that I found special and want to talk to you about tonight. The reason I want to talk to this distinguished audience about terrorism, is that I have recently heard some people whose judgment and balance I respect very much question the government's antiterrorism efforts and question the relatively new authorities given the government under The PATRIOT Act.

Now let me share with you something I said on this subject before I left government. I told the Ninth Circuit Judicial Conference this year that the government's authorities under which it deals with terrorism are not, and should not be, unbridled. There should be appropriate checks and balances to government power. The struggle against terrorism should not change the essential character of this great nation. We should never waiver from the principle that we are a country dedicated to The Rule of Law.

Shortly after the terrorist attacks of 9-11, I met with retired Justice Barak of the Supreme Court of Israel. It was a very profound experience. Justice Barak left me with a copy of a 1999 decision of the Israeli Supreme Court dealing with the interrogation practices of the General Security Service—also known as "Shin Bet"—in using so-called "moderate physical pressure" in the interrogation of terrorism suspects. The Court noted in deciding to prohibit this practice:

A democratic freedom-loving society does not accept that investigations use any means for the purpose of uncovering the truth—at times, the price of truth is so high that a democratic society is not prepared to pay it.

The Israeli Supreme Court's conclusion in the case applies equally to our country:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and [add to] its strength and allow it to overcome its difficulties.

Wise and eloquent words. I referred to them often as we at the Department tried to do what we had to do to keep us safe.

This all is a good preclude to why I want to talk to you about terrorism. As a leader in the Department of Justice, I came to realize that the country's success in fighting the threat of terrorism would increasingly depend on public confidence that the government can ensure the fair and impartial administration of justice for all Americans while carrying out its essential national security and public safety efforts. This is why the concerns I mentioned deserve our attention.

But the level of discussion and debate about the government's antiterrorism efforts is at the extremes. Some view the government's techniques and authorities as unnecessarily authoritarian. While others view those who have concerns as uninformed and willing to unnecessarily sacrifice the country's safety. Much of the debate is shrill and ill-informed on both sides.

This is truly unfortunate, and certainly does not foster the needed public confidence. By necessity, I believe, some of the government's efforts have been aggressive. In dealing with terrorism, the department's focus could no longer be on just investigation and prosecution. The department also had to be concerned about prevention and disruption. There has been an increased use of material witness warrants in terrorism cases. There has been the voluntary interviews of certain aliens. The president has designated three persons who are U. S. citizens as enemy combatants.

And there is another antiterrorism measure I would like to single out because of how it fits into the public debate about the government's anti-terrorism efforts. The department has increased the availability of searches and electronic surveillance under The Foreign Intelligence Surveillance Act. In doing so, the department issued new directives that have fostered cooperation among national security and law enforcement personnel. To me, this means that the department undertook necessary measures that will allow intelligence and law enforcement officials to "connect the dots" in terrorism investigations.

The department's authority to undertake these important efforts was derived under Section 218 of the PATRIOT Act and that particular provision will "sunset" or cease to be in effect on December 31, 2005. In fact, sixteen provisions of the PATRIOT Act will sunset in 2005.

Now, I obviously strongly believe that this provision is important to our success in dealing with terrorism. But what I believe is not the point. The point is that it is vitally important that the country have a reasoned, dispassionate, and informed debate about the legal tools and measures necessary in dealing with terrorism. This is the only way we can achieve the public confidence which I believe is necessary if our efforts are to be successful. And we certainly cannot afford to allow the provisions of the PATRIOT Act, like Section 218, to sunset without the kind of reasoned and careful national discussion I am talking about. Too much is at stake.

I have a modest proposal. This discussion or review of the government's antiterrorism authorities, I believe, should be done outside the partisan wrangling of Congress and outside the unhelpful influence of interest groups.

We should consider establishing, either a congressional or presidential bipartisan commission to review and report on the sunsetting of provisions of the PATRIOT Act. Such a commission should consist of respected and balanced constitutional scholars and legal practitioners.

I know commissions have, in the past, been misused. For example, they have been used to shield Congress or the Executive Branch from having to make difficult decisions. But, perhaps, in this instance, a review commission, with an appropriately distinguished membership, will allow us to take one small but very important step toward a reasoned, dispassionate and informed national discussion about anti-terrorism efforts.

I have had a first-hand positive experience with such a commission. In 2000, I participated in what was called The Judicial Review Commission on Foreign Asset Control. It was a bipartisan congressional commission. The primary mandate of the commission was to review the constitutionality of the Foreign Narcotics Kingpin Designation Act's preclusion of judicial review of decisions by the government. After assembling a staff, the commission engaged in informed fact finding, held public hearings, and produced a report to Congress. The commission's work, I believe, also formed a basis for legislative modification of the controversial preclusion of the judicial review provision of the Kingpin Act. The commission's work received broad support from Democrats and Republicans, many career government officials, industry and even the American Civil Liberties Union.

If after a reasoned and informed debate, it becomes clear that public confidence in the government's antiterrorism efforts would be substantially eroded if one more provision of the PATRIOT Act were not sunsetted, then fine. We as a country should then move on and do our best to ensure public safety.

Too much is at stake to proceed any other way in a country that is threatened by the horrors of terrorism but whose citizens—all of them—cherish The Rule of Law. Al Qaeda, for example, continues to pose a threat to our country, even though we have had some success against it. More than one-third of the Al Qaeda leadership identified before the Afghanistan war has been killed or captured. But, George Tenet has testified before Congress that the CIA continues to receive information that Al Qaeda is dedicated to striking the U.S. homeland again.

But terrorism is a very serious matter even without an attack on the U.S. homeland. Last year, more than 600 people were killed in acts of terror—200 people were killed in Al Qaeda related attacks alone. Nineteen were U.S. citizens.

So, because we do continue to face the prospect of mass murder of civilians on our soil by terrorists, we should not be complacent. We Americans have an absolute right to be safe on our own soil and free of terrorist attacks. The greatest danger we face as a nation in dealing with terrorism is that we take the very serious threats we face for granted, continue to be ill-informed, and do not try to secure public confidence in our anti-terrorism authorities that I believe are necessary to protect our homeland. I know that some of my efforts at Brookings will be devoted to trying to find ways to make our discussion and debate regarding our antiterrorism authorities and measures more informed and reasoned.

Now, I'll try to answer any questions you may have. But remember that in doing so, I'll be guided by what a great lawyer, Emory Buckner, once said. Buckner served as U.S. Attorney for the Southern District of New York from 1925 to 1927. He said the two most useful things a lawyer can say is "I don't know" when he or she does not know the answer, and "I admit" when a mistake is made or a persuasive fact presented against a position you have taken.

Thank you.

Larry D. Thompson, Senior Fellow

Brookings Council 20th Anniversary Dinner

Counter-terrorism rights and the rule of law: how far have we come since executive detention?

Since 9/11 the reluctance of the Government to adhere to the normal tenets of human rights-protection and the rule of law in counter-terrorism measures has been demonstrated with a fairly depressing repetitiveness. This is particularly clear in relation to pre-charge restrictions placed individuals thought to be involved in terrorist activities.

In the immediate aftermath of 9/11 the rapidly enacted Anti-Terrorism Crime and Security Act of 2001 (‘ATCSA’) implemented a policy of executive detention of non-UK nationals (s.23). Little over four years later the House of Lords handed down the oft-cited and widely commented upon judgment in A v Secretary of State for the Home Department (‘A’) holding that the power was incompatible with the ECHR. The judgment was seen by some as striking a first, and significant, blow against the Government’s counter-terrorism agenda and as sending a clear rights-enforcing message. Through the subsequent enactment of the Prevention of Terrorism Act 2005 the Government replaced executive detention with control orders (ss.1-9). This regime remedied one source of criticism of executive detention by allowing individuals of any nationality to be detained. However, whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime. Control order restrictions cause significant disruption to the individual controlee’s life with damaging long-term effects, as illustrated by Cerie Bullivant’s account of being subject to a control order. As a result the control orders regime has been criticised by Amnesty International, Human Rights Watch, Liberty and other human rights organisations.

Two persistent themes within the criticisms of both executive detention and the control orders regime are the process by which the measures are imposed; and the expansive powers possessed by the secretary of state in terms of the restrictions that can be imposed on individuals. The parallel nature of these criticisms demonstrates the continuities between control orders and executive detention. Thus, while the control orders were meant to represent a solution to the rights-infringing nature of executive detention in turn they have been condemned on comparable grounds.

In January 2011 new measures, were announced as a replacement for control orders from the end of 2011, in line with the Coalition Programme for Government (p.24) and as a response to the conclusions and recommendations of a review carried out by the Human Rights Joint Committee. The terrorism prevention and investigation measures (‘TPIMs’) were described by Theresa May as offering a more focused and targeted regime of counter-terrorism powers and as able to restore freedoms while protecting the public (Hansard, 26 January 2011, cc.306-08). On 23 May 2011 the Terrorism Prevention and Investigation Measures Bill was introduced into the House of Commons. The Home Office announcement promised that the regime would be much clearer in terms of what restrictions could be imposed and that these would have to be proportionate and clearly justified to ensure that they were kept to the minimum necessary to protect the public. In contrast to governmental claims, however, from the outset TPIMs have been dismissed as a mere rebranding of control orders and a direct comparison between control orders and TPIMs reveals the extent of the continuity between the two regimes.

Whilst TPIMs do not curtail individual liberties and rights to the same extent as executive detention they do demonstrate a continuing readiness to depart from the normal processes of the criminal justice system and fail to connect use of the powers with the need for an on-going criminal investigation. At the same time the continuation such measures overlooks arguments concerning their lack of utility in countering terrorism, as well as the negative impacts that they can have, in terms of community cohesion and cooperation with the police. Indeed, one of the key substantive advantages of TPIMs over control orders, resulting from the Government’s decision to remove provisions from the Bill which allowed for internal exile, was compromised by a number of amendments to the Bill tabled by the Government along with the publication of an Enhanced Terrorism Prevention and Investigation Measures Bill on 1 September 2011. The Enhanced TPIMs Bill provides for a range of additional restrictions to be imposed on individuals. These could include internal relocation; isolated residence; longer curfews; bans on communications without the Secretary of State’s consent; restrictions on associates; and bans on leaving a designated locality. Alongside the new Bill amendments proposed to the main TPIMs Bill sought to afford the Home Secretary power to impose enhanced TPIMs in exceptional circumstances while Parliament is not sitting.

On 5^th September the Government’s proposals were debated in the House of Commons and the TPIMs Bill was passed, but the attempt to insert the enhanced provisions was defeated by 314 votes to 213. Despite this Governmental defeat concerns relating to the impact of TPIMs and enhanced TPIMs on individual rights and the rule of law remain. In particular, whilst the enhanced powers are restricted to circumstances in which a ‘very serious terrorist risk’ exists time and again counter-terrorism powers that are intended for narrow, exceptional application have come to be deployed more widely and frequently than originally intended. Even if such normalisation of these exceptional powers is avoided their failure to adhere to the normal processes of the criminal justice system suggest that perhaps we have not come so very far from the rights-infringing practices and contempt for the rule of law condemned in relation to executive detention.

In much that same way that control orders represented a continuation of many of the rights-infringing excesses of the executive detention power the Government to some extent has undertaken a similar relabeling and repackaging process with control orders. A number of aspects of the TPIMs and enhanced TPIMs regimes suggest that in the ten years since the passage of the ATCSA we have failed to make much significant progress in valuing and protecting individual rights and the rule of law over the enactment of national security-related measures that are better suited to appeasing popular fear of terrorist attack than identifying and prosecuting individuals involved in terrorism. The names and political allegiances of those proposing the measures have changed but fundamentally the legislative provisions appear to be distinctly wedded to infringing civil liberties and human rights in an attempt to secure better protection against terrorist attacks, while potentially fuelling the directly opposite effect.

International Terrorism and the Rule of Law

The issues of terrorism are multifarious and highly complex. The lives of victims are changed forever by acts of terrorism. It is not only the immediate victims and their close relatives that are hit—one day, out of the blue—by terrorism but also society at large. Its socio psychological impacts could transform the society hit by the terrorist activities, in various forms such as restriction on personal freedom or on privacy. Outrage tends to give in to emotional reactions. While its root causes often run deep—a subject which I do not intend to go into in this forum—terrorism presents an enormous challenge to each society and to the international community as a whole. I wish to commend the initiative undertaken by the governments of Switzerland and Spain to organize this workshop in the framework of the Euro Atlantic Partnership Council and Partnership for Peace with a view to sharing the experiences and looking ahead for further co operation to tackle the issues. Today I will share some of my thoughts with you on how we members of the international community should fight this common threat to our society from the viewpoint of the legal framework for such a fight. Needless to say, these are strictly my personal thoughts. Moreover, I shall approach this problem purely from the viewpoint of the basic legal framework relating to international terrorism, while a number of important issues falling within the purview of this workshop on “Civil Society Facing the Consequences of Terrorism” will be left out. 1. Historical Overview Terrorism has existed as long as the history of human society, manifesting itself in such forms as political assassination or hostage taking. However, “terrorism” as a modern term of art dates back to the late 18th century political situation in France, where a form of governmental terrorism, in which the authority arbitrarily inflicted severe acts of violence upon a population, was permitted as was exemplified by the expression “the reign of terror” at the time of the French Revolution. The 19th century witnessed a spread of terrorist attacks against heads of State. Group terrorism made its appearance in particular in the czarist century Russia in which a number of governmental leaders fell victim to terrorists. At the turn of the 20th century, group terrorist activities became further linked with the movement of self determination starting from central Europe and Turkey, a link which survived up until the present day in the context of secessionist movements throughout the world. Terrorism and counter terrorism have indeed occupied a large part of present day conflicts in many corners of the world. Today, the international community is further being confronted with the new dimension of globalized terrorism, generating in the international community an acute sense of the need to come up with consolidated approaches to tackle the issue. Terrorism in the contemporary forms can be considered not only to be aimed at undermining and subverting the public order of a given State but also against international public order. The very fact that terrorism is used as a means to achieve a political goal has created certain ambiguity about the definition of terrorism: acts of terrorism for some are for others acts promoting a cause. However, a consensus has been gradually formed that, regardless of the motives that underlie the acts of terrorism, it is not acceptable to resort to acts of terrorism in order to achieve political objectives and should be criminalized as they attack public order of society. Such awareness was reflected already in the 19th century in the form of the attentat clause whereby an exception is made to the general principle of non extradition for political crimes; assassination of heads of State or members of their families was designated as a common crime; it was provided in bilateral and multilateral treaties that culprits of such offences be extradited to be subject to trial and punishment. In the present setting, the remarkable normative development of international human rights law, international humanitarian law and international criminal law has come to generate the sentiment of condemning the culture of impunity for terrorist acts, whether these acts are committed by secessionist movement or by oppressive regimes. 2. Responses of the International Community to terrorism Against the background that terrorism is threatening not only the very basis of our domestic society but also the prospect of sound development of the international community, it is legitimate for the international community to give serious attention to terrorism from the viewpoint of international legal order. The essence of international legal order is to uphold the rule of law in international society as society of human beings. If the pursuit of happiness and welfare of human individuals is the reason why human kind came to form a society, it is natural that society is entitled to protect itself from the violence of terrorism which attempts to destroy this raison d’être of our society. The rule of law is the key to pursue this goal. However, in approaching the issue of terrorism from this angle, it is important to keep in mind the two aspects in which the rule of law is relevant to the issue of terrorism—i.e., first, the aspect that the rule of law has to prevail to protect society from acts of terrorism by criminalizing terrorism and, second, the aspect that the rule of law has to be strictly maintained in exploring effective measures for countering terrorism. Before exploring these two aspects, it may be useful to address the underlying problem of how we define terrorism as a preliminary point to be considered. As I mentioned earlier, the unparalleled unity that now prevails in the condemnation of international terrorism in the contemporary world is not matched by a universal understanding of what we mean by the term. This is a point we have to keep in mind in addressing the issue of terrorism as an issue of the rule of law in society. Without knowing what is precisely to be criminalized, we cannot decide on the rule of law to be established. It is in fact for this reason that, as will be seen, the international community has seen a proliferation of legal measures without however concluding a universal convention on terrorism—a fact that betrays political controversy underlying the issue. With a view to circumventing this difficulty, the international community has adopted instead a “piecemeal” approach, concentrating on identifying specific criminal conducts to be prevented and punished and on particular targets to be protected. Nevertheless, it is essential, even in this piecemeal approach, that there should be a shared common understanding on some basic constitutive elements of terrorism as an international crime. In order to constitute an act of terrorism, it has to be a violent act that is destructive of human life and thus in contravention of the criminal justice system of the State in which it is committed; it is aimed at destroying public order of society, in most cases through causing casualties to persons, public or private; and it has to be an act carried out with the intent of spreading a state of terror (intimidating or coercing a civilian population) or to influencing a policy of a government or organization by intimidation or coercion including mass destruction, assassination or kidnapping. In addition, international conventions addressing “international terrorism” restrict their application to terrorism with a cross border, international element. (A) The Need for Upholding the Rule of Law through Containing Terrorism Efforts have been made to contain terrorism through the development of both domestic as well as international legal norms on this aspect of the problem. Starting with the prohibition of terrorism on the high seas in the form of piracy—a most long standing proscription under international law—a number of multilateral conventions and protocols have been concluded in recent years under the auspices of the United Nations and its specialized agencies, especially since the second half of the 20th century. Since the 1960s, more than a dozen universal legal instruments concerning the prevention and suppression of terrorism have come into existence. They include conventions for such unlawful acts as those against the safety of civilian aviation, and attacks against internationally protected persons including diplomatic agents and the hostage taking, as well as the Protocol of 2005 to the Convention for the suppression of unlawful acts against the safety of maritime navigation and the Protocol of 2005 for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf. While these acts are not defined as terrorism eo nomine, the acts covered by the conventions clearly target acts perpetrated in the context of terrorist activities. In addition to these specific conventions, similar provisions are included in multilateral conventions of more general scope, such as provisions relating to the prohibition of acts of piracy under the 1958 Geneva Convention on the High Seas. By comparison, the International Convention for the Suppression of Acts of Nuclear Terrorism adopted by the General Assembly in 2005, as well as the Amendment to the Convention on the Physical Protection of Nuclear Material can be regarded as being targeted more specifically at the act of terrorism in their purview, given the nature of the acts involved. In a broad sense, these universal conventions can be said to constitute the fundamental global legal regime against terrorism and serve as sources for international co operation in countering terrorism. As for actions taken by political organs of international organizations, there has been a growing involvement of the Security Council of the United Nations in countering terrorism. A number of resolutions have been adopted in the aftermath of terrorist attacks, condemning such attacks as a threat to international peace and security, with legal effects. (Examples are numerous of such Security Council resolutions which relate to major terrorist attacks such as Resolutions 1368 and 1373 of 12 and 28 September 2001 on the terrorist attack of 9/11; Resolution 1438 of 14 October 2002 on the terrorist attack in Bali; Resolution 1530 of 11 March 2004 on the Madrid attack; Resolution 1611 of 7 July 2007 on the London attack.) The increasing involvement of the Security Council provides one of the important aspects of international co operation in creating a legal framework through legislative acts for containing terrorist acts and enforcing the anti terrorist measures taken in the name of the international community. It is to be recalled, however, that these anti terrorism conventions and Security Council resolutions cannot be implemented in a vacuum, just as terrorists cannot operate without some link with a territory. In order to implement this system of international co operation for preventing and punishing acts of international terrorism, it is essential that every State is placed under the obligation to integrate the substantive and procedural requirements of those international conventions and Security Council resolutions into its own existing criminal law system. For this purpose the State is often required to establish certain legal nexus between the acts in question and its own criminal justice system, such as the principle of territoriality, or of nationality by which the State party to the legal instrument is to exercise jurisdiction in relation to the defined offence in accordance with aut dedere aut judicare principle. The introduction of universal jurisdiction on the basis of international agreements with regard to the acts of terrorism assumes a cardinal importance in this context. Of essence in this regard is the need for harmonization and integration of these principles in international law and in domestic law. It is only then that the legal regime against terrorism can be effectively enforced as part of international public order through co operation of the domestic legal system. This aspect, i.e., effective domestic legal regime in line with international conventions criminalizing terrorism, is all the more important because acts of terrorism are not always prescribed as part of the core international crimes subject to international criminal jurisdiction in the current international criminal law. For example, terrorism is not included within the purview of the Rome Statute of the International Criminal Court (ICC) nor of the International Criminal Tribunal for the former Yugoslavia (ICTY). By contrast, the Statute of the International Criminal Tribunal for Rwanda (ICTR) covers the taking of hostages and engaging in acts of terrorism as violations of the second Additional Protocol to the Geneva Conventions and makes them punishable by the Tribunal, as well as that of the Special Court for Sierra Leone which also includes a specific prohibition of terrorism in armed conflict. In any case, the limited scope of application contained in these exceptions in relation to armed conflicts would seem to testify to the absence of a broader consensus on the definition of terrorism in the international law community. (B) The Need for Abiding by the Rule of Law in Countering Terrorism With a view to protecting the civilian population in society against the terrorist attacks in the name of the general interest of society, many international and regional conventions relating to human rights allow certain categories of derogation from individual human rights protection as guaranteed under the conventions, provided such measures fulfill specific conditions set out therein. Situations of national emergency thus allow room for restricting civil liberties to a certain extent, such as allowing wire tapping and mail surveillance subject to judicial scrutiny by the treaty organs in many cases. However, a fundamental question arises: to what extent are such derogations to be allowed? Where does one draw the line? If the protection of society from the consequences of terrorism is the goal to be attained in our fight against terrorism, the suppression of fundamental human rights of individuals in society, even for the purpose of combating terrorism, would seem to fall into the pitfall of creating a self contradiction, if allowed without stringent circumspection. Only such a stringent circumspection would offer a satisfactory ultimate solution in coping with the threat that terrorism would pose. It is my view that measures taken to counter terrorism could ultimately be counter productive if they should result in the total negation of the basic principle of the rule of law, as well as the protection of fundamental human rights as an essential ingredient of the rule of law. This is so for the reason that the powers that the authorities responsible for the protection of individuals in society for their safety and welfare may exercise derive their legitimacy from the fact that such powers are essential for the protection of those individuals as members of society with their fundamental human rights. In carrying out their duty to restore and secure public order in society by exposing and preventing terrorist plots, and apprehending and interrogating suspects of terrorist attacks, however objective the need to protect and restore public order may be, the authorities must have a choice of means for achieving those objectives. Obviously some means would be easier to implement and more effective in achieving the desired objective; the cost benefit equation could come into play in the minds of the authorities. Nevertheless it is imperative that this choice of means should be made in such a way as not to infringe the fundamental human rights of individuals at large in society, including those individuals who are suspected of the very crime in question. There are fundamental human rights standards in this regard, based on such principles as the presumption of innocence and the due process of law. Even the imperative of society to contain terrorism through effective means cannot be above the law. It would be contrary to the basic notion of the rule of law to justify, even in the name of maintaining the rule of law in society, an action that would end up in the denial of the fundamental human rights, which constitute one of the basic ingredients of the very principle of the rule of law in society. It is true that in a concrete situation, striking the right balance between the legitimate imperative of protecting society as a collectivity of human beings and the imperative of protecting individual members of this society as human beings that constitute this society may not be always easy. Cases that have come under judicial scrutiny of the European Court of Human Rights demonstrate this difficulty in concrete circumstances. Nevertheless it is essential to achieve this. We need constantly to ask ourselves in the concrete context of the situation whether the imperative to protect society, whose very existence is put in jeopardy by the threat of terrorism, and the imperative to protect the fundamental human rights of individuals are to be juxtaposed through a judicious choice of means. It should always be kept in mind in choosing the means that the consideration for the public order of a society, be it national or international, ultimately is meant to serve the purpose of protecting individuals who constitute the society. In reality there are always choices available for responding to the imperative of the society without infringing the fundamental human rights of the constituent members of society to an unreasonable degree. It is my view that unless there is absolutely no other way but to suppress certain civil liberties of the members of society in order to secure the survival of the society in question, the resort to such extreme measures as the suppression of fundamental human rights in the hands of the authorities should not be attempted. In any case, what is essential from the viewpoint of the rule of law is that such measures must be subject to judicial review. After all, the ultimate judgment on this question cannot but lie in the hands of society itself. 3. International Terrorism from the Viewpoint of International Legal Order It must be recognized that at present we are faced with a new type of terrorism that has come to appear on the international scene—i.e., terrorist acts waged by non State entities which attempt to cause the death of large numbers of people, and whose activities are growingly globalized in scope just like the activities of States with their international political agenda. In this new situation the distinction between the issue of terrorism by individuals as a subject for criminal law sanction at the national level and the crime of international terrorism by non State entities as a subject for enforcement action at the international level, like the use of force, is growingly being blurred. This underlies the context in which a collective response—be it through a group of States or through the Security Council—becomes a critical factor in deciding on our approach to international terrorism in the new situation. In this respect, the tragic event of September 11, 2001, was a shattering experience to the whole of the international community. It posed a direct challenge to the public order of the international community as such, and not just a threat to the public order of a particular nation. This indeed could be described as an entirely new type of threat involving the use of force on the international plane by a non State actor. In this sense, the situation created by this attack was something which did not fit easily into the traditional nomenclature of terrorism as a criminal act to be disposed of within the framework of national criminal justice system. Faced with this new challenge, two options are open to the international community. One is to follow what the United States in fact pursued in reliance upon Article 51 of the United Nations Charter. This action by the United States was immediately accompanied by similar actions by some other members of the North Atlantic Treaty Organization (NATO) acting within the framework of the right of collective self defence under Article V of the Treaty. Subsequently the Security Council adopted a resolution which could be regarded essentially as endorsing this approach of the United States. I submit that there is, however, yet another approach to this situation, i.e., to look at this situation squarely from the viewpoint of a direct challenge to the public order of the international community. In this approach, we should look for measures to be taken from the viewpoint of meeting the situation as a threat to the international peace and security. It would appear that the course followed, as well as the view of the majority of writers on the 9/11 situation, was to endorse the former approach. The approach of the United States was complemented by the invocation of corresponding right of collective self defence by a number of member States of the NATO under Article V of the North Atlantic Treaty. In light of the rationale for the right of self defence and the genesis of this doctrine as enunciated in the Caroline case, there is little doubt about the availability under international law of the right of self defence as reflected in the former approach, even in the case of an armed attack by non State actors. Nevertheless, I venture to submit that it may legitimately be asked whether the latter approach, at least conceptually, would not be the better approach. The Security Council could have dealt with the situation squarely as the case of a direct breach of the peace, as well as the threat to the security of the international community which could immediately set in motion the action to be taken by the Security Council. There would seem to be no room for doubt that the terrorist attack carried out by a non State entity in this case posed a direct serious challenge to the public order of the international community as such, going beyond a mere infringement of the legal interest of a particular State victim of this attack. The situation would seem to fit more appropriately to the framework of the Charter regime on collective security, which is a framework conceived primarily from the viewpoint of ensuring the public order of the international community. It is my submission that in addition the validity of this latter approach will be even clearer, if one were to suppose a hypothetical case in which an international terrorist group, instead of resorting to the use of physical force amounting to an “armed attack”, resorted to the clandestine dissemination of some lethal chemical or biological agent, such as hitherto unknown virus or radioactive material, whose effect upon the population would be equally or even more devastating. While it might be arguable also in such a case of the terrorist act that such means of destruction would fall within the category of “arms” and the terrorist act in question within the ambit of an “armed attack”—a stringent constituent element for triggering the resort to self defence by a State—there should be even less ambiguity in this situation that such a large scale dissemination of lethal material with the intent to kill the population would amount to the threat or breach of the peace under Article 39 of the Charter of the United Nations. 4. Conclusion Internationalization of terrorism can no longer be adequately dealt with by the purely national responses based on the traditional nomenclature of terrorism as a crime within the purview of the domestic criminal justice system of a nation State; global terrorism calls for global response based on the consideration of international public order of the international community with its non derogable imperative of fundamental human rights of human individuals as part of the universal justice of this community. If we accept that the rule of law on the international plane is based on the sanctity of human dignity, international terrorism that constitutes a most serious and violent challenge to this core value of the rule of law is best countered through resorting to those means which could uphold and strengthen the rule of law, rather than those which would result in undermining it by denying this core value. Hisashi Owada President of the International Court of Justice

Rule of Law

Nowadays rule of law is a hot topic to be discussed in Malaysia. But interestingly it seems that many people are unaware the essence of this doctrine and it's purposes.

Again, in Malaysia, who really cares about it?

Malaysians seem to forget their basic fundamental rights. They tend to become the servants to the 'servants' who assume the role of the master.

What are happening around the globe now are the fine reminders what the law actually can do if it is not been treated fairly.

The guardians of the law supposed to play their roles to preserve the law rather than to abuse it. And if that happened then, the entire system will collapsed because people do not longer believed in it.

We are heading to that direction and in my observation it is an evolution that the country is needed for the betterment of people of this country.

See you soon.

Holy Cow and election

Cow............holy???

Condo

Land

Car

Projects

Election..................................and

Voters..........

Country....................Malaysia...

Who cares???

Election, Constitution and Rights

Law and nature;

Men and Law;

Men and nature.

Interrelated and corelated.

But most of the time people who are walking on the corridor of powers always isolated themselves with the nature.

Nature have taught us great things. Fairness always prevailed. No one can denied anyone's rights. Truth is always supreme.

The recent legislation on public assembly is does not complied with the requirements of nature, constitution and us.

Why this legislation is created? A lot resentment and all is down to upcoming election.

Can we just forgo our rights which enshrined under the constitution to acheive a single motive?

I have no answer for this question.

cheers.