Assessing Damage, Urging Action 4.1 Defining terrorist offences States wishing to introduce special counter-terrorism legislation quickly face the problem of defining concepts such as “terrorism”, “terrorists” and “terrorist offences”. In the past there are many examples of States seeking to stifle dissent by defining terrorist offences in law in overly broad terms. For example, Article 8 of Turkey’s now repealed Anti-Terrorism Act 52 was used to this end. The law defined terrorism to include “written and oral propaganda and assemblies, meetings and demonstrations aimed at damaging the indivisible unity of the State of the Turkish Republic”. In reality, the law provided the grounds for indicting intellectuals, human rights advocates and lawyers so as to repress criticism of State policies. Broadly defined terrorist offences led to the suppression of legitimate dissent, and prevented an open debate about such issues as the underlying causes of violence concerning the status and treatment of the Kurdish minority in Turkey.53 A common complaint was that counter-terrorism laws have in the past been abused for political reasons, or have been extended to apply beyond the original stated purpose of combating terrorism. The problematic elements of such legislation usually include – vaguely defined offences, wide discretionary powers to law-enforcement agencies, and a reduction of safeguards, such as access to lawyers and/or diminished judicial oversight. Some offences need to be newly regulated by law, but if such laws are not narrowly drawn, they can become a tool for repression. The Panel looked, for example, at the situation in India. Serious and persistent conflict over the status of Kashmir and Punjab; two prime ministerial assassinations; and a number of lower level conflicts in the north east have been part of the background to a succession of emergency or counter-terrorism laws. India’s extensive array of special counter-terrorism laws included the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The scope of offences triggering the Act was so broadly crafted that arbitrariness was almost inevitable. Statistics show, for example, that some States, such as Jharkhand, used these laws frequently, though terrorist incidents were much rarer there as compared to states such as Jammu, Kashmir or Punjab. Statistics also show that TADA, and its successor, the Prevention of Terrorism Act (POTA) – both now no longer in force – were applied in a discriminatory manner against Dalits, members of lower castes, tribal communities, and religious minorities.54 52 Anti-Terrorism Act No. 3713, adopted on 12 April 1991. 53 See J. Rodney Madgwick, et al., The Independence of Judges and Lawyers in the Republic of Turkey: Report of a Mission (14-25 November, 1999), Centre for the Independence of Judges and Lawyers, Geneva, 1999, pp. 125 and 141; and ECtHR, inter alia: Judgment of 8 July 1999, Sürek and Özdemir v. Turkey, Application No. 23927/94, 24277/94; Grand Chamber Judgment of 8 July 1999, Gerger v. Turkey, Application No. 24919/94; Judgment of 15 June 2000, Erdogdu v. Turkey, Application No. 25723/94. 54 See the written submission by Mr Rohit Prajapati, Documentation & Study Centre for Action, EJP South Asia Hearing. 37