A flawed anti-terrorism law

PAKISTAN has faced multiple active terrorism threats over the past 15 years, which now constitute an existential threat to the state. In order to deal with this, Pakistan enacted an anti-terrorism law in 1997, subsequently improved to meet emergent threats through a number of amendments.

This law not only includes provisions for the punishment of terrorists but also offers a comprehensive framework for dealing with terrorism at large. It enables preventive detention of terrorists, redefines the required evidence for conviction, lays down simplified trial procedures for the speedy disposal of terrorism-related cases and constitutes special anti-terrorism courts. Additionally, it also provisions witness protection programmes.

From this law follows all actions to confront terrorism in Pakistan, including the National Action Plan. Its expansive powers, together with the now expired Protection of Pakistan Act, have been widely criticised for falling short of international human rights standards. However, such an exacting law is justified because Pakistan has experienced a heavy toll in terms of loss of life and assets for the past two decades due to widespread terrorism.
In the wake of continued acts of terrorism emanating from the tribal areas, the armed forces have been pressed into action to deal with this threat. Indeed, it is Operation Zarb-i-Azb that has rescued Pakistan from the brink of collapse, although we still have a long way to go to restore peace in the country.

The fundamental flaw of ATA is its definition of terrorism, which has led to its rampant misuse.

Despite such a comprehensive law, the conviction rate of terrorists continues to be very low and, upon acquittal, they are free to wreak havoc anew. These dismal outcomes are attributed to poor investigations and prosecutions. However, a closer analysis of the law shows that the fundamental flaw is the definition of ‘terrorism’ itself.
Apparently, the legislators who defined ‘terrorism’ did not comprehend its implication — or, perhaps, defined it deliberately with the mala fide intention of using this very harsh law to suppress political dissent. No one reviewed this faulty definition after the first enactment in 1997. By contrast, British legislators take their task so seriously that, in 2007, they engaged Baron Carlile of Berriew QC as an independent reviewer to help redefine the term ‘terrorism’. We just borrowed the definition from UK law and adopted it with some alterations. The authors of the law, however, failed to consider our local context.

Paragraph 6 of the Anti-Terrorism Act, 1997 defines the ‘act of terrorism’ in these words: “Terrorism – (1) In this Act, “terrorism” means the use or threat of action where: (a) the action falls within the meaning of sub-section (2); and (b) the use or threat is designed to coerce and intimidate or overawe the government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause”.

It further elaborates the act of terrorism in sub-paragraph 2 of this law and specifically enumerates a long list of specific offences as acts of terrorism. All these actions are, however, subject to the specific conditions laid down in sub-sections (b) or (c).

Nonetheless, sub-section (3) of this section effectively negates these conditions when it states: “(3) The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1(c) is satisfied.”

In Pakistan, where there is rampant proliferation of illegal weapons and one cannot imagine the commission of violent action without the use of firearms, the law can thus be applied to almost 99pc of violent offences. The legal laxness of this definition thereby allows the government to use the law to settle scores or satisfy public protests on the commission of just about any offence. Since the definition encompasses a whole range of actions, it practically replaces a large part of penal law involving violent acts.

It is this serious lacuna that has enabled the government to misuse the legislation to the extent that even routine misdemeanours are registered under this law. Through its application, genuine political demonstrations have also been transformed into ‘terrorism’. In Lahore, for instance, a jilted lover threatening suicide with a firearm was booked under the terrorism law, while protesting students in Islamabad were also booked under this law for damaging public transport. There are scores of such cases wherein, under political direction, this law is even applied to routine crimes.

This has resulted in a large number of registered cases that now require additional anti-terrorism courts – thereby resulting in a parallel judicial structure. Courts that were supposed to try only terrorism-related cases have thus been burdened with routine cases that choke the entire system and impede the speedy resolution of terrorism-related cases. This law’s blatant misuse to settle political scores has given Pakistan the dubious distinction of registering cases against high profile personalities — including a former president and prime minister, ministers, bureaucrats and just about every important politician.

An otherwise effective and well-thought-out piece of legislation, instead of becoming a vehicle for dealing with Pakistan’s terrorism issue, is itself impeding the fight against terrorism. As has been demonstrated, a number of high-profile terrorists could only be speedily convicted by military courts under a constitutional amendment (which will soon lapse), whereas the special courts established for this purpose are unfortunately mired in routine cases, thereby defeating their raison d’être.

To address this pivotal issue, it is important to craft a specific and narrow definition of terrorism, and this law should only be applied through an independent assessment of the offence to determine its nature. To expect positive results with such flawed legislation is not only naïve but also criminal neglect of a key issue. Indeed, there is a need to revisit the present incarnation of the entire law as it impedes the National Action Plan and distorts efforts to fight terrorism.

Source: Dawn