Reaction to Omagh puts citizens under threat

Bertie Ahern was stretching it yesterday in claiming that the new anti-terrorist legislation, passed into law last week, forced the "Real IRA" into a ceasefire. The fact is subversives have little to fear from this cynical gesture to be seen to be doing something after the Omagh terrorist atrocity.

Instead, it is ordinary citizens who have to fear this legislative atrocity. We have once again devalued the basis of our liberty and we have cheapened the democratic legislative process which is supposedly a guardian of our liberty.

This new legislation did the following:

1 In cases of trials for membership of an illegal organisation, it permits the courts to draw inferences from the refusal of the accused to answer questions;

2 It permits evidence of associations of persons accused of membership of an unlawful organisation;

3 It requires notice to be given of witnesses that may be called by persons accused of membership of unlawful organisations;

4 In cases brought generally under the Offences Against the State Acts, it permits the courts to draw inferences when the accused relies on a fact, in his/her defence, that he/she could reasonably have been expected to mention during questioning on being charged but did not do so;

5 It makes it an offence to direct an unlawful organisation;

6 It makes it an offence to possess articles in circumstances which give rise to a reasonable suspicion that the articles were to be used in connection with a firearms or explosive offence;

7 It makes it an offence to collect, record or possess information likely to be useful to members of unlawful organisations in the commission of serious offences;

8 It makes it an offence to withhold information which a person has or believes might be of material assistance in preventing the commission by any other person of a serious offence or securing the apprehension, prosecution or conviction of any person for such an offence;

9 It makes it an offence to instruct or train another person in the making or use of firearms or explosives without lawful authority;

10 It extends the period of detention of persons arrested under the Offences Against the State Acts from two days to four days;

11 It provides for the forfeiture of property used for the purpose of committing or facilitating commission of certain offences unless the court is satisfied there is a serious risk of injustice if it made such an order of forfeiture.

It is improbable that hardened terrorists could not get around the requirements to answer questions about illegal organisations in a way that will negate the operation of the first of these measures.

On the issue of association, it is hard to believe the courts would ever interpret this section in a manner with any "bite" - the consequences of doing otherwise would be to encroach hugely into the constitutional right of association.

The provision regarding notice of defence witnesses on charges of membership of illegal organisations is laughable. When was a witness for the defence ever called in such a case and how could anyone ever give evidence that someone was not a member of an illegal organisation?

The fourth of these provisions requires the State to have substantial evidence of guilt in the first place and the problem generally is that such substantial evidence is not available.

Regarding the provision which makes it an offence to direct an illegal organisation, when was it not an offence to do so?

On the sixth provision, what could such articles be? If they are firearms or explosives or detonators, possession of them is already an offence. But if it is such objects as cars or mobile phones or maps - if this section is to be effective - its encroachment on civil liberties generally would be substantial.

Similarly with the section dealing with having information likely to be of use in connection with the commission of terrorist offences. Most of us have information that could be of such assistance. If this section is to mean anything, it would have to infringe civil liberties profoundly.

The provision on the withholding of information would be extremely difficult to prove except in cases involving near relatives or journalists. And in both such instances, the application of the section would be deeply unfair.

The section on the training on the use of firearms or explosives is pure codology. Where these are unlawfully held, manifestly training in their use is already illegal. Where the possession is not unlawful, a charge under this section would be ludicrous.

On the extension of period of detention, what is the point of this if not to allow the gardai to apply extra pressure on detained persons to confess to crimes. This would most likely give rise to grave miscarriages of justice.

The forfeiture of property provision might be a deterrent but it could be necessary to prove the property owner knew it was being used in connection with terrorist activity and this would be difficult to prove, as has already been found.

So what was the point of the exercise other than to give the impression that the Government was responding to public outrage over the Omagh atrocity?

Certainly, there was nothing in the measures that required urgent implementation to deal with the revived terrorist threat. Our existing laws and increased Garda surveillance would have sufficed satisfactorily, at least until measured consideration was given to proposed legislation that had the ramifications contained in the recent Act.

Instead, without any authorisation or consideration by the parliamentary party of the partners in government, the measure was brought before the Dail by the executive at only two days' notice and then railroaded through in a single day.

Our political culture now demands a hastily devised legislative response, dictated by the executive, whenever a law and order crisis arises. So long as the government of the day is seen to be doing something, it doesn't matter apparently what damage is done to our system of justice or system of government.

In the Dail debate last week, the Minister who introduced the legislation, John O'Donoghue, simply avoided most of the obvious questions raised by Opposition TDs. The main Opposition party, Fine Gael, could not decide what it wanted: for some (Charlie Flanagan and Jim Higgins) the legislation was not tough enough, for others (Alan Shatter and Alan Dukes) it was far too tough. The Labour Party ducked out. It was only Liz McManus of Democratic Left and Joe Higgins, the socialist from Dublin West, who fought the measures section by section with some impressive help from Alan Dukes, Alan Shatter and, occasionally, the Green party.

But we now have An act on our statute books that will do almost nothing to assist the suppression of terrorism but which will do a lot to undermine the liberties of us all.