The state has dual responsibilities: to protect its citizens and their property from terrorist attack and to guarantee the fundamental rights of those within its jurisdiction.
But after that uncontroversial start we soon get into choppier waters. How do we balance these two objectives, which will often conflict? It is a hard balance, and extraordinary times will justify it being struck in different ways. Surely we should be prepared to accept more intrusion into our personal lives through more sharing of information between public agencies if that is needed to detect and prevent more terrorist attacks or bring to justice those responsible?
But there remain certain rights which will be non-negotiable. So there is a place for debate about the proper limits of action and whether government has gone too far. But too often the criticism of government action in relation to terrorism does not get beyond rhetoric. It does not recognise that new challenges must be faced.
While the terrorist does not forfeit his fundamental rights, the law does recognise that those rights can be restricted or derogated from in particular circumstances. Rights are not only one-way. It is not only the rights of suspected persons which are important. The rights and liberties of other citizens are important too.
In order to combat terrorism effectively and defend the rights of society, we need to be flexible and imaginative in our approach to legal process and recognise that some restriction on fundamental rights may well be required.
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