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To Implement UN Anti-terrorism Conventions Practically and Choose the Counter-terrorism Legislation Pattern Rationally
| 2010-1-29 8:22:00--- Zhao Bing-zhi & Du Miao Translated by Zhao Shu-hong | 327 Hits |
1. Introduction
After the terrible events of September the 11th, 2001, the terrorism swept all over the world with the great terrorist attacks happened one by one, and so the anti-terrorism becomes the general question which the international society faces. The UN, as the biggest and most universal international organization at the present time, has passed the Convention on Offences and Certain Other Acts Committed on Board Aircraft, International Convention on Against the Taking of Hostages and other 13 international conventions since the 1960s.The Comprehensive Convention on Combating Terrorism is on the way to be established by the UN. In order to implement the UN anti-terrorism conventions practically, all of the countries have modified and improved their present laws. From this we can see that the specific legislative pattern of the anti-terrorism becomes the international trend now. So, how to choose the reasonable legislative pattern of the anti-terrorism becomes the first problem that all the countries should face now.
2. UN Anti-terrorism Conventions and the Anti-terrorism legislation of All the Countries
2.1 UN Anti-terrorism Conventions
In the strict sense, United Nations gets involved in an international fight against terrorism ought to start from the beginning of 1970s.With the harm of the terrorism increasing day after day, the United Nations is unceasingly paying more attention to the terrorism question by making a series of international conventions on the anti-terrorism. These conventions are: the Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963,Tokyo), Convention for the Suppression of Unlawful Seizure of Aircraft(1970, Hague), Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971, Montreal), Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (1973,Newyork), International Convention Against the Taking of Hostages(1979,Newyork), Convention on the Physical Protection of Nuclear Material(1980, Vienna), Convention for the Suppression on Unlawful Acts Against the Safety of Maritime Navigation (1988,Rome), Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation(1988,Montreal), International Convention for the suppression of Terrorist bombings (1997,Newyork), International Convention for the Suppression of the Financing of Terrorism (1991,Newyork), International Convention for the suppression of Terrorist bombings(2005,Newyork). In these 13 UN anti-terrorism conventions, there are specified that all the members of the UN should take measures to make their own law to abide by the UN anti-terrorism conventions. These measures include: to criminalize the specific behaviors, to establish the Either Extradition or Prosecution principle, to formulate the international cooperation mechanisms for the anti-terrorism.
On the day of 11 September 2001, New York, the Washington D.C. and the Pennsylvania state have suffered the significant terrorism attack. The 9.11 Terrorist Attacks cause not only the serious personnel casualty but also the property damages and affects directly the various countries anti-terrorist legislation. At the same time, the UN Security Council rapidly made 1373rd and a series of resolutions, requesting various member nations make the effective domestic legislation to prevent the terrorism behavior, simultaneously the UN Security Council required all the countries regard subsidizing the terrorism as the crime. At the same time, the UN Security Council had also established the counter-terrorist committee which is composed by 15 member nations supervising the various countries to take the measures to carry out the related resolutions. Driven by the UN, all the countries in the world examined their original laws and tried their best to make their laws perfect.
2.2 The Anti-terrorism legislation of All the Countries
With the powerful impetus of the UN anti-terrorism conventions, the legislation of the anti-terrorism in all the countries have experienced the course of start, development and flourish. Since the middle period of the 20th century, terrorism has already become the problem that can't avoid in international community and the threat to the international peace and security has also been obvious. Some countries afflicted with the great suffering from the terrorism have already begun to make the anti-terrorism laws. For example: Prevent the Terrorism Act (Israel 1948), Prevent the Terrorism Act ( Britain 1974) Special Tribunal Act in the Overflowing District of the Terrorism (India 1984), Prevent the Terrorism and Sabotage Act( India 1985), Forbid Supporting the Terrorism law (America 1984),Rewarding Law for Offering the Information about the Terrorism( America 1984), Diplomatic Security and Anti-terrorism Law(America 1986), Against International Terrorism Law (urgent power)(New Zealand 1987).During that time, the world focused the conflict between the USA and USSR and so the anti-terrorism had not attracted the attention of the people. Accordingly, the legislation of the anti-terrorism is so scarce.
Since the 1990s, with the Soviet Union disintegrated and the cold war ended, all kinds of national and religious conflict in the world have been seen here and there. Some terrorism organization which had been declined in the world emerges once again and forms the transnational terrorism network. Therefore, all the countries today pay more attention to the methods which the governments take to attack and prevent the terrorism to meet the demands of the UN anti-terrorism legislation. For example, Peru promulgated 4 anti-terrorism bills in 1992, USA passed the Anti-terrorism and the Utility of the Death Penalty Act 1996, Pakistan has passed the Anti-terrorism Act 1997, Russia passed the Anti-terrorism Act in 1998, Britain passed the Anti-terrorism Act 2000. During this period of time, the number of the countries, which make the anti-terrorism law specially is increasing.
The terrorism made more and more serious harm and influence day by day and spread all over the world. For example, the Explosion Event in Indonesian Bali on 12, October 2002, the Explosion Event in UN Branch Office in Iraq on 19,August 2003, the Explosion Event on the Train in Madrid on 11,March 2004, Beslan Hostage-taking Event on 1,September 2004. the Successive Explosion in the Subway of London on 7,July 2005, the Attempted Offence of the Skyjacking in Britain on 10,August 2006.
Advocating the rule of law is the outstanding feature of the modern civilization. The terrorism gradually becomes the common threat which the international society faces, so this urges the anti-terrorist legislation to enter the prosperous time.
During this period of time, many European countries made a serious of anti-terrorism law. These anti-terrorism laws include: Anti-terrorism, Crime Prevention and Security Act of 2001, Prevent Terrorism Act of 2005,Anti-terrorism Act of 2006 (Britain), Urgent Measures to Fright the International Terrorism Act of 2001 (Italy), Strike the International Terrorism Act (Germany 2002),Anti-terrorism Act (France 2006), Anti-terrorism Act (Russia 2006). In addition, other countries, for example, Denmark, Holland, Turkey, Sweden, Belorussia, Azerbaijan have all carried on the anti-terrorism legislation.
During this period of time, Asian countries also made many anti-terrorism laws. These anti-terrorism laws include: Special Measures to Prevent the terrorism Act (Japan 2001), Anti-terrorism Act (Korea 2001),Prevent the anti-terrorism Act of 2002(India), Pakistan modified its Anti-terrorism Act of 1997, Anti-terrorism Act (Mongolia 2004), Human Security Act (Republic of the Philippines,2007), In addition, countries such as Singapore, Indonesia, Saudi Arabia, Sri Lanka have also made the anti-terrorist law.
Strike the terrorism to Defend Constitutional Democracy Act (South Africa, 2004), Anti-terrorist Act (Uganda 2002), Prevent the Terrorism Act (Tanzania 2003), Anti-terrorism Act (Morocco 2003), Strike Terrorism Act(Tunisia 2003),In addition, countries such as Nigeria, Jordan have also carried on the anti-terrorist legislation.
USA Patriot Act of 2001, Prevented the Biological Weapon to Take the terrorism Act of 2001, Public Health Security and the Prevention of the Biological terrorism Act of 2002,(USA), Anti-terrorism Act of 2001( Canada), Anti-terrorism Act (Cuba 2001), In addition, countries such as Colombia, Peru have also made the new anti-terrorist laws.
It's worth noting that many island countries in the North America and the Caribbean Sea area become the center that can hide the terrorist and launder the money because of their superior geographical position, so many countries there ,such as Barbados, Trinidad and Tobago, all made the anti-terrorism laws during this period of time.
Australia passed the following 5 acts on the anti-terrorism: Anti-terrorism Act of 2004, Anti-terrorism Act of 2004 (2), Anti-terrorism Act of 2004 (3), Anti-terrorism Act of 2005, Anti-terrorism Act of 2005(2); New Zealand made the Punish the Terrorism Act of 2005 and modified the act in 2003 and 2005.
3. Comparative Study on the Anti-terrorism Legislative Pattern
The so-called anti-terrorism legislative pattern mainly refers the anti-terrorism legislation models that are formed according to the legislation technical standard. There is little discussion about the anti-terrorism legislative pattern in the academic circle of China. The main viewpoints are: one viewpoint thinks the anti-terrorism legislative pattern can be divided into the dispersal pattern, the special pattern and the comprehensive pattern. The dispersal pattern refers the legislature makes neither the basic anti-terrorism law nor the special profession anti-terrorism law. With this legislative pattern, they only supplement and revise the present laws in their existing law and regulation frame; The special pattern refers the legislature makes not the unified anti-terrorism laws but the special profession anti-terrorism; the comprehensive pattern refers the legislature not only makes the unified anti-terrorism basic law but they can make the more detailed laws and other anti-terrorism act. The other viewpoint holds that the anti-terrorism legislative pattern can be formally divided into the special pattern, the adjunctive pattern and comprehensive pattern and it can also be divided into plane defense and three-dimensional defense pattern from their content; The third viewpoint holds that anti-terrorism legislative pattern can be formally divided into the central and open pattern and it can also be divided into offensive and defensive pattern from their content. We think that the first viewpoint is creative because it can grasp the trend of the anti-terrorism legislative pattern from the legal system, but this kind of legislative pattern belongs to the generalized anti-terrorism pattern, so it is not the topic here. The other two viewpoints have their own reasonable contents, but there still have many should to be discussed. In view of the fact that the various countries have their own different legislation tradition, different legal frame, and the anti-terrorism situation, the anti-terrorism legislation pattern also presents the different characteristics.
3.1 Take the form of the anti-terrorism law as the classified standard, the pattern of the anti-terrorism act can be divided into: special pattern, the adjunctive pattern and comprehensive pattern
The special pattern is a kind of legislative pattern that stipulates specially but not adjunctively the relationship between the rights and obligations. With this kind of legislative pattern, the legislation can add the new law without consideration of the original legal system. So the special pattern has the clear logical system and can cover the content of definition, measures of preventing and punishing of the terrorism. That is to say, the special pattern is just to add the new legal department in their original legal system. The countries that use the special pattern include: Russia, Mongolia, Philippines, Uzbekistan, Tajikistan, Kyrgyzstan, Ukraine, Japan, France and so on. Take the Russia Anti-terrorism Act of 2006 as an example, this anti-terrorism act does not modify any original law of Russia, but add the completely new content which can adjust independently a series of social relationship. This anti-terrorism act stipulates firstly the legal foundation, basic principles, the directing strength and the striking objects of the anti-terrorism. secondly, this act also stipulates the authorities and division of the various functional department in the course of anti-terrorism, at the same time, this act emphasizes the conditions of the handing the terrorism events and the special authorization in the course of the anti-terrorism. Finally, this act also emphasizes the compensation for the loss caused by the terrorism, the social aids for the victim of the terrorism and the supplication safeguard for the anti-terrorism. From that we can see that this anti-terrorism has already constructed a more complete anti-terrorism legal frame.
With this kind of pattern, the legislature makes the anti-terrorism act not by specifying the relationship between the duties and the rights but by remedying, deleting and replenishing their existing laws. The pattern modifies and perfects all the laws concerning the anti-terrorism in their existing law system, so it is just a kind of collection of the laws concerning the anti-terrorism with the name of legislation. The legislation of this pattern is so limited by their existing legal system that makes its logical system incomplete and its connection between the chapters loose. But this legislative pattern is favorable for maintaining its legal system stable. Some countries, such as Germany and Australia and so on take this kind of legislative pattern. In the year of 2002, Germany passed the Counter-international Terrorism Act. This act gives neither definition of the terrorism nor the vowing content, such as basic principle, anti-terrorism policy and so on, but it modifies its administrative law and organization law to meet the demands of anti-terrorism. In this law, there are more modification for the following laws: Federal Constitution Security Law, Military Counter-espionage Bureau Law, Federal Intelligence agency Law, the Tenth Provision Law, Federal Border Defense Law, Passport Law, ID card Law, Association Law, Federal Criminal Activity Bureau Law, Control Foreigner law, Air traffic Law. This legislative pattern is typically adjunctive pattern.
The comprehensive pattern is the legislative pattern with which the legislature can either stipulate the relationship between the rights and duties independently or modify, supplement its existing laws. USA, UK, South Africa and other countries take this legislative pattern. South Africa made the Protect the Constitutional Democracy and Strike the Terrorism Act in the year of 2004, and this legislative pattern is the typically comprehensive pattern. This act consists of the introduction, text and the appendix. The introduction announces that the South Africa take up the anti-terrorism position and emphasizes the demand for the implementation of the international conventions; The text supplements a series of crimes of the terrorism and the relative punishment, meanwhile ,the text still stipulates the jurisdiction, evidence and other procedural contents. The text also stipulates the special authorization for the public prosecutor and the police. This Act broke through its original legal stipulation and created many new duties and rights. The act enumerates a series of laws concerning the anti-terrorism in the appendix and modifies the contents which are against the anti-terrorism laws. From this, the contents of the following laws are in tune with each other. Such laws as are modified are: Extradition Law of 1962; Criminal Procedural Law of 1977; Prevent the Organized Crimes Act of 1998; the Nuclear Power Act of 1999; the Financial Information center Act of 2001.Such modification to these laws make their content harmonize well with the anti-terrorism act.
3.2 Take the content of the anti-terrorism law as the classified standard, the pattern of the anti-terrorism act can be divided into: the plane defense pattern and the three-dimensional defense pattern
The plane defense pattern is kind of legislative pattern with which the country only uses the single legal means to strike the terrorism. With this legislative pattern, the content of the anti-terrorism act often deals with the punishment, so its content is simple. As we all know, the criminal law is used to protect the legal interest by punishing the criminals. As the last means to protect the society, the criminal law plays the leading role in the anti-terrorism. Holland, Italy, Jordan, Saudi Arabia, Tunisia have used this kind of legislation pattern. The anti-terrorism acts of such countries are essentially the special criminal law. Such legislative pattern always gives the definition of the terrorism and supplements some new crimes and punishment in their anti-terrorism act. The law of this pattern also stipulates the special detection measures, the court procedure, protection of the witness, the evidence rule and so on. For example, Holland passed the Terrorism Crime Act on 10, August 2004. In this Act, there are many modifications, such as the following: Firstly, the act stipulates the concurrent jurisdiction for the terrorism. According this act, Holland has the power of jurisdiction for the person who is in Holland but committed the terrorism out of the country. The person who lives constantly or temporary in Holland committed the terrorism outside of the country should be sentenced by the court of Holland; Secondly, the act supplements many new crimes. According this act, the person who participates in the organization with the aim to conduct the terrorism should be sentenced with 8 years of imprisonment, the leaders or the central persons of this organization should be sentenced with 15 years of imprisonment; Thirdly, the act aggravates the punishment of the terrorism. According to this act, the person who committed the serious crimes with the aim of terrorism should be doubled their punishments (up to the life imprisonment).
The three-dimensional defense pattern is the legislative pattern with which the country utilizes all the legal measures which are multi-level and trans-branch to punish the terrorism. With this legislative pattern, the anti-terrorism acts of the country are not limited by the criminal law in the content but embody some contents of the organized laws, administrative laws and military laws. So this legislative pattern has advantage of taking all the measures to strike the terrorism. The following countries take this legislative pattern: USA, Russia, England, Australia and Philippines. The Patriot Act of 2001 is the typical of this kind of legislative pattern. Firstly, this Act strengthens the country the power to monitor the society. According to this act, the president owns more power than before, and some concerning departments are authorized to intercept the radio, chat and the electronic communication. This act also stipulates the measures to counter the money-laundering and the ways to strengthen the immigration management and the security of the boundary, Secondly, the act contains many criminal laws. The act gives the definition of the terrorism and stipulates that the judicial department has the power to detain the foreigner suspect for 7 days before he is prosecuted and expelled. The act still stipulates that the law should punish the person who supports and conspires the terrorism. Finally, the act requires the army to assist in certain emergency cases to carry out the prohibition rules. From that we know that the Patriot Act of 2001 contains comprehensive contents. So the act has built the three-dimensional defense legislative pattern.
3.3 Take the aims of the anti-terrorism law as the classified standard, the pattern of the anti-terrorism act can be divided into: the offensive pattern and the defensive pattern
In the global anti-terrorism struggle, with the different countries owning the different history and realistic situation, the aim of the anti-terrorism legislation is also various. Some countries were attacked by large-scale terrorism and the anti-terrorism situation is more serious. For this kind of countries, the attitude to the anti-terrorism is extremely firm and they have the strong will to strike all kinds of the terrorism. But for other countries, because though they also face the threat from the terrorism, the possibility that their terror will be attacked by the terrorism is relatively small, or because of the result of some questions left over by history. The above reasons enable these countries to hold the discrete attitude to the anti-terrorism and take the conservative manners to strike the terrorism.
The offensive legislative pattern is the pattern with which the countries utilize all the national superior strength to prevent and strike the terrorism. The legislation of this pattern reveals that the country makes no concession to the terrorist. This kind of legislative pattern even permit to use the military force to take the extremely severe measures to strike the terrorism. The offensive pattern has the following characteristic: firstly, the terrorism is regarded as the serious crime with the serious punishments; secondly, the country of this pattern always establishes the crack troops to use the military or the paramilitary strength to attack and frighten the terrorism. The Russia Federal Anti-terrorism Act of 2006 is the typical offensive legislative pattern. The legislation of this act concerns Russian anti-terrorism situations at that time. Russia's internal danger - - Chechen terrorist group itself belongs to the paramilitary organization which has the massive weapons, So, the attack which Russia had been suffered from the Chechen terrorist group has caused the extremely serious personnel casualty and the property damage. For this reason, the Russia's anti-terrorism legislative pattern reveals that Russia puts the national security on the superior position and strikes the terrorism seriously by the means of law. For example, this anti-terrorism act stipulates their armed force has the pre-emptive strike power. According this act, under the legal condition, especially there exists some threat to the personnel life, or when the terrorism may cause the ecological disaster, Russia Armed forces will be able to use the weapon and other armed equipments to shoot down the aircraft, attack and sink the ships. Especially, according to this terrorism act, Russia armed force may strike the overseas terrorism in their own country or prevent the terrorism on their mission outsides their own borders.
With this kind of legislative pattern, the country mainly deals with the terrorism mainly through the afterwards support and the salvation. The anti-terrorism act of this pattern emphasizes the measures that the government should take after the terrorism and stresses the protection for the important targets and avoids resorting to the arms to strike the terrorism. The Special Measures to the Anti-terrorism Act, which was made in
3.4 Take the legal validity of the anti-terrorism law as the classified standard, the pattern of the anti-terrorism act can be divided into: the general legislative pattern and the special legislative pattern
With the general legislative pattern, the anti-terrorism act applies universally to every person and matter in the area and period which are not defined. The following countries take this legislative pattern: Russia, Ukraine, Uzbekistan, Tajikistan, Kyrgyzstan, Mongolia and so on. The Russia Federal Anti-terrorism Act of 2006 is the representative of this pattern. This anti-terrorism act applies to every citizen, company and other organization without any exceptional stipulation. This anti-terrorism act contains the definition of the terrorism, the mechanism construction, preventive measures, emergency program, sanction, and the order recovery. With these contents, this anti-terrorism act can deal with all kinds of the terrorist attack. Because the act is the federal law, it applies to not only the terrorism rampant area such as Chechen but the Federal Russia extremely. This act becomes effective after it is announced, so there exists no possibility that the act has the period of validity and the expiration.
With the special legislative pattern, the anti-terrorism act only applies to the specific matters and specific areas in the specific period of time. Take the validity of time, the validity of space and the validity of the object as the classified standard, the special legislative pattern can be divided into the special time law, the special area law and the special matter law.
The time law belongs to the special legislative pattern, with this pattern, the anti-terrorism act stipulates the effective period of the act. When the effective period is over, the act of course ceases to be in effect. The expiration of the act is not for the change of the legal notion but only for the appearance of the legislative reason. If the legislature believes that the legislation goal has not reached, the effective period of this act should be extended before it is expired. It is worth noting that there always exists the sunset clause in the anti-terrorism act in order to prevent the anti-terrorism authority abusing to infringe the right of the citizen. The sunset clause can force the legislature to inspect its authorization regularly to decide whether it should continue to authorize the state agency according to the execution of the law. From that we can see that the special time law is favor for evaluating the social effects of the anti-terrorism act by supervising and restricting the state power.
The following countries take this legislative pattern: America, Japan, Germany, India and so on. The Special Measures to Deal With the Terrorism of
The special area law is the law that only applies to the specific area. The terrorism has the distinct geographical characteristic, and this kind of characteristic is similarly obvious in a country. When some area coexists many various nationalities, races or religions, political factions, its contradiction changes very possibly into the terrorism, so this area becomes severely afflicted area of the terrorism. Some countries take this legislative pattern to prevent the terrorism from diffusing and deluging, but this pattern is the special historical product, so it almost disappeared today in the world.
In the course of anti-terrorism legislation, Britain and India had taken this kind of pattern. In Britain, the early terrorism mainly originated from the contradictory conflicts between The Protestant sect and the catholic sect of the Northern Ireland, and their paramilitary organization carried on the violence attack mutually, so the attack scope expanded gradually to the innocent people and the government army and so on. The Downing Street made the Urgent Authority Act of 1973, which is only effective in the Northern Ireland in order to stabilize the turbulent situation. This act is in face the first British anti-terrorism act, even though the act is not with the name of anti-terrorism. In this act, there stipulates the definition of the terrorism and the procedure to authorize the police and other special law-enforcing departments. According to this act, the police and other departments have the extremely widespread power: to detain, to imprison, to arrest and to confiscate the land and the property, and they still have the power to stop the violence, to prevent the assembly and association. India passed the Special Court in the Terrorism Area Act in 1984. the act gives the definition of the terrorism and authorizes the central government to own the power to announce some area is the terrorism area and to take the corresponding special measures.
The special matter law is the kind of law which is only applied to some special matter. With this kind of pattern, the country legislatures the law with the specific object and destination and all its articles are made for these object and destination. At present time, most countries take the integrative measures, such as political, economic, cultural and diplomatic measures to strike the terrorism. Certain matter may become the key step of the anti-terrorism strategy because these matters are very important. So this special matter law is formed with this legislative pattern. The Anti-terrorism Act in Palestine of 2006 passed in America is the representative of this pattern. This act announces that America policy for the conflicts between the Palestine and Israel is to support the peaceful way to solve the problems with the both sides anticipating in the discussion, meanwhile, the act still condemns any person and organization that supports the terrorism and violence. The act has made all sorts of restraints to Palestine, causing it to indicate the anti-terrorist standpoint to take the practical effective measure to strike the terrorism. For example, America has imposed limitation on the support for the Palestinian Government, West bank and the Gaza Strip according to this act. At the same time, according to this act, the America Uses its national strength to stop international finance organizations from providing the aid to Palestine, limiting the Palestinian officials and the Palestinian Liberation Organization member's action outside the United Nations Headquarter. Meanwhile, the act in principle forbids the American official and Palestinian Terrorist organization carries on the official contact and so on.
3.5 Take the anti-terrorism legislative jurisdiction as the classified standard, the pattern of the anti-terrorism act can be divided into: the centralization pattern and the decentralization pattern
With the centralization legislative pattern, only the central government owns the legislative authority and the local government has no choice to keep to the acts but has no power to legislate the anti-terrorism act. In the country with the single state structure, the central government owns the superior power and the local government exercises its power in the constitutional sphere led by the central government. The following countries take this legislative pattern: French, Philippine, Japan.
France is the typical country which takes this pattern. The characteristic of its anti-terrorism act is: the longitudinal authority relations between the central government and the local one are to stress the centralization, but not pay great attention to the decentralization. So the local governments in France, which include the big areas, provinces, city, town and overseas territory and so on, have some power to make laws. For example, the parliament in the big areas is authorized to decide the social economy development plan of its area, the administrative surveillance, and the financial management situation, and to act the benefit of its own, decide its fiscal budget and to make the local regulations. But on the issue to strike the terrorism, the French government emphasizes the national standpoint, which is to prohibit the local government from owning the independent anti-terrorist legislative power. Since 1980s, all the authentic and unified anti-terrorism acts have been made by the central government of France. On 23, January 2006, the French government passed a new anti-terrorism act. This act stipulates how to obtain the secrete information, how to utilize the video to take the surveillance, how to prolong the data obtained from the internet and the telephone and how to identify the dangerous persons.
With the decentralization pattern, both the central and the local government have the power to make the anti-terrorism acts. The central government owns the power to legislate the unified anti-terrorism act and the local governments still have this power, but the local governments mainly implement the central anti-terrorism acts and stipulate the detailed standards for the implementation of the anti-terrorism acts. The legislative power from the local governments is a little independent because it is the legal adaptation power. That is to say, the local governments can make some change in the execution of the central laws according to the local situations. America and Australia and other countries take this legislative pattern. This legislation pattern includes the following two kinds of types:
The first type: there is no explicit division of the legislative power between the central and the local governments. The America is the representative of this legislative pattern. According to the America constitution, the United States Congress is the federal legislature and the State Assembly is the state legislature and both of them have the legislative power. In year of 2001, on the 45 day after the terrorist attack of 9.11, the United States Congress passed the Patriot Act as the legal basis of the anti-terrorism acts. But the New York Assembly passed its own anti-terrorism act to enlarge the scale and strengthen the power to strike the anti-terrorism. According to this anti-terrorism act, the terrorist who attempts to murder other person in the terrorist attack will be sentenced to death. So this anti-terrorism act is called the most serious anti-terrorism act in America. After the legislation of the Patriot Act, there are at least 33 states passing the new anti-terrorism acts to revise their original laws.
General speaking, there exists no explicit anti-terrorist legislation jurisdiction division between the federal and the state government. Every state can also give the definition of the terrorism and create a series of new crimes and punishments. For example, in the Georgia state, according to its Georgia Homeland Defense Act, the domestic terrorist behavior is the behavior that more than 10 persons are be injured and murdered in it with the aim to force, coerce the citizens and the governments to do something. This act stipulates the maximum sentences and the fine. When there needs to be sentenced to death, the person should has the aggravated circumstances at the same time. The Michigan State Anti-terrorism Act defines the terrorist conduct as the violent felony that the person conducts with the aim to force and coerce the citizens and to affect the governments. With the view of the different attitudes to the death penalty in the various states of America, some states, such as New York, stipulate the death penalty for the terrorist, but other states, just such as Minnesota, say no to the death penalty for the terrorist. In the Michigan state, the terrorist who caused the death of the victims should be sentenced to life imprisonment without parole. In addition, the California state, the Delaware state, the New York state and Wyoming State all passed the laws to emphasize the compensation for the victim of the terrorism under the crime victim compensation frame. For example, the Californian legislature passed the act to compensate urgently the disposable 1,000,000 ＄ for the victims in the New York soon after the 9.11 event.
The second type: there exists the explicit division of the legislative power between the central and the local governments. The Australia is the representative of this kind. Australia is composed of the states and the regions. All its numbers have the power to legislate the anti-terrorism acts, but there still exists the explicit division of the legislative power between the central and the local governments. On 5, April 2002, the leaders from the federal, the states and the regions held the summit in Canberra decided that the local authority hand over the anti-terrorism legislative power to the federal government. According to the Amendment to the Criminal Law (terrorism) of 2003, the federal government has this unified power and all the states agree that the federal government still has the power to amend this anti-terrorism law. Even though the states and the regions still own certain little legislative power to make the new anti-terrorism acts, its contents are limited in the preventive detain and so on.
For example, the Queensland state, the new south Welsh state, the south Australia state, the Tasmania state, west the Australian state all has promulgated the anti-terrorism act in 2002 (Federation Jurisdiction), and the Victoria state has promulgated the anti-terrorism act in 2003 (Federation Jurisdiction). These anti-terrorism acts specify the federal power in the course of the anti-terrorism fight but deals with no concrete contents. After that, all the states passed a serious of anti-terrorism acts one by one. These acts are: Queensland state: the Anti-terrorism Act of 2005 (Preventive Detention); South Australia state: the Anti-terrorism Act of 2005(Preventive Detention); west Australian state: the Anti-terrorism Act of 2005 (Special Authority); north territory: the Anti-terrorism Act of 2003 (Urgent Authority); new South Welsh state: the Anti-terrorism Act of 2002 (Police Authority) and so on. All these above anti-terrorism acts mainly authorize the police the special preventive detain power but deal with no content concerning with the terrorism.
4. Thoughts of the Anti-terrorism Legislative Pattern of China
Our country supports and participates actively in the international anti-terrorism under the United Nations leadership. China had acceded to the most majority of the international conventions on the anti-terrorism and developed positively all kinds of the international anti-terrorism cooperation before the 9.11 event. After that, our country supports the United Nations and the Security Council to pass a series of anti-terrorism resolution and carries out the related resolution earnestly. Our country acceded to the International Convention for the Suppression of Terrorist Bombings and signed International Convention for the Suppression of the Financing of Terrorism and the International Convention for the Suppression of Acts of Nuclear. Even though there exists no precedents to abide by and many puzzlements in the course of legislation, our government still stepped out resolutely into the course of the special anti-terrorist legislation. What kind of legislative pattern should our country take in the legislation? We think we must consider fully our country's legislation tradition, the legislation actuality, the anti-terrorist situation and the international influence that the anti-terrorism law possibly creates.
4.1 The Legislative Pattern: the Special Pattern
As to the legislative pattern, our country should take the special legislative pattern. Firstly, the existing law frame in China cannot meet the anti-terrorist demands practically. The special anti-terrorist provisions in China can only be found in the criminal law and other dispersible laws and such provisions cannot meet the current situation need completely. Even though we can amend such provisions, such provisions can embody all the contents of the anti-terrorism, because the anti-terrorism deals with a series of contents, such as: prevention, disposal, sanction and restoration. Secondly, China has no comprehensive legislation tradition. We should also consider whether this pattern can maintain our country legal framework complete and harmonious. From the early year of the foundation of our nation, the substantive law is still the dominant characteristic of our country, and if we legislature integrates many amendments to the various branch laws in one substantive law, it is rarely seen in the history of new China.
4.2 The Content of the Anti-terrorism Law: the Three-dimensional Defense Pattern
As to the content of the anti-terrorism law, our country should take the three-dimensional defense pattern. Even though the plane pattern can make up the deficiency of certain department laws, this legislative pattern still does not conform to our country's legislation present situation. Our criminal law stipulates the Crime of Organizing, Leading and Attending the Terrorist Organization and the Crime of Subsidizing the Terrorist Activities, there still cannot meet the anti-terrorist demands practically. At the same time, there still appear no law concerning the anti-terrorist organization system and the anti-terrorist disposal. In our criminal law, the anti-terrorist contents no doubt need to consummate, but it also exists more blank domains to be urgently regulated by the legal, especially, how to prevent and disposal the terrorism. At the same time, in the field of dangerous substances control, the exit-entry administration and the internet information supervisory control lack the special anti-terrorist contents. In fact, the three-dimensional defense pattern can create the perfect anti-terrorism results. The reason is the following: only when the law stipulates clearly the anti-terrorist organization system, can the anti-terrorist departments cooperate with each other, take the individual responsibility in the work of anti-terrorist work. Only when the laws stipulate the anti-terrorist means, such as the administrative means, the criminal means and even the military means, can we erect up the three-dimensional anti-terrorist defense system which has the different and varied responsive system to defense the personnel, the property, the goods and the information from the terrorist attack.
4.3 The Aims of the Legislation: the Defensive Pattern
As to the aims of the legislation, China should take the defensive pattern. Presently, peace and the development still is the main theme of our era and to construct the harmonious world is also our country's urgent voice. Chinese president Hu Jintao announced China should follow the road of the peaceful development. We suggest that China should take the defensive anti-terrorism legislative pattern with no offensive declination. From a global perspective, some countries have stipulated the too severe anti-terrorist measure and some countries have authorized their armed forces to cross their territories to strike the terrorism, so this has initiated international society's universal question. If it is stipulated in the Chinese anti-terrorism law that the anti-terrorist department has the power to strike the terrorism overseas, it is not only impossible in the practice but it can create the international tension and give the other country a chance to publicize the so-called China Threat ideas. If so, it does not favor our country's peaceful rise and to provides the good international environment for the social development. With the economical globalization and the political diversificaton, under the anti-terrorist background, should China with its responsible, peace-like and the great nation image obtain the respect from the world, and that is the effective way to eradicate the terrorism.
Unlike the Japanese anti-terrorism legislative pattern, our anti-terrorism law should not exclude the reasonable use of the military force to strike the terrorism. There still exists the possibility that the terrorism attack our country massively. Chinese former president Jiang Zemin once explicitly pointed out in the Fifth Session of the Ninth National People's Congress that it needs to consider the anti-terrorism as the duty of the armed force. According to this remark, the armed force should do well in the training to help the local government to strike any kind of terrorism. At the same time, the Chinese armed force should take the terrestrial, airborne, and the marine anti-terrorist rescue duty and help the local governments to deal with the explosive events. Japan takes the passive defense pattern is owing to its historical and constructional reason. Our country should strike any serious terrorism actively.
4.4 The Validity of the Law: the General Pattern
Take the validity of the law into consideration, China should take the general pattern. At the present time, the economic, political and cultural exchange between the regions in one country becomes close and it always needs to concentrate the complete national resources, even the international cooperation to strike the terrorism. In reality, the special anti-terrorism law often has the ideal results difficultly. At the same time, the special anti-terrorism law takes the discriminative measures to the different regions, so this special pattern has the flaw that intensifies the social contradiction and induces the terrorism. In China, the biggest threat facing us comes from the East Turkistan terrorist group, which mainly builds the training base in Xinjiang to take the violence terrorism. But we think that the striking and preventing the terrorism is very important for the national security and social stability, therefore, the anti-terrorism law should apply to the whole country, but not only to the special region. So we should take the general anti-terrorism legislative pattern. Some countries still make the special time law and the special matter law as the anti-terrorism laws, we think this can help us to consummate our anti-terrorism legislative pattern.
4.5 the Anti-terrorism Legislative Jurisdiction: the Centralization Pattern
Considering the anti-terrorism legislative jurisdiction, we think that China should take the centralization pattern. To strike the terrorism is an comprehensive affair of state, and it possibly involves the politics, the economy, the culture, the military, the diplomacy and so on many domains. The centralization pattern can play the leading role in the anti-terrorism. Just as Harry Hendensen, the America scholar, said that many laws concerning the anti-terrorism have relation with the federal laws. On the one hand, the terrorism often has the political and the ideology color, and the centralization legislation pattern can cause the country to unify the standpoint of the anti-terrorism and to reduce the internal friction in anti-terrorism; On the other hand, the terrorism has the serious realistic hazardous nature, so the centralization legislation is advantageous of conforming the national resources and concentrating the strength to prevent and to attack the terrorism. According to the legislation law of the People’s Republic of China, our anti-terrorism legislative power should be owned by the National People's Congress and the Standing Committee of the National People's Congress which stipulate the foundational concept, the anti-terror work mechanism, the terrorist organization and so on, and the local governments should carry out the anti-terrorism laws with the power to make the local regulations and the other regulations according to the special matters of that region, but these regulations should not conflict with the central legislation.
5. Conclusion
The anti-terrorism legislative pattern is changing according the development of the realistic situations. In the countries taking the adjunctive pattern, the legislatures can make the independent anti-terrorism acts without the limitation of their original legal frames when they are attacked by the new type of the terrorism; The offensive pattern may change into the defensive pattern if the results of the comprehensive measures to control the anti-terrorism are very satisfactory. Form that we can see that: Which kind of the legislative pattern the country should take is all to prevent and strike the terrorism effectively. Just like Hegel pointed out that the legal nature of the thing should not give in to the law, but the law should give in to the nature of the thing.
But, the choice of the legislative pattern has the vital significance to the anti-terrorist effect realization. To choose the legislative pattern that is suitable to its country situation can contribute to the following: to meeting the demands of complementing the international anti-terrorism laws; to realizing the biggest effect of the anti-terrorism laws; to realizing the fair ideas of the state rule by law; to stabilizing the legal system of its own; to promoting the society to keep stable and harmonious. The various legal systems of the world can provide us with more and more measures to solve the realistic problems. As to the anti-terrorism legislative pattern, the countries should construct the perfect global anti-terrorism law net with the aims to create the perfect results of the anti-terrorism by comparing and making up their deficiency in the course of learning from each other.
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