Ten years since Pakistan came in the grip of ever-increasing terrorism, the longstanding issue of amendments to the Anti-Terrorism Act (ATA) of 1997 is far from resolved. Prime Minister Yousuf Raza Gilani, last Tuesday, directed the Law and Interior ministries to go back to the drawing board and report back with a fresh proposal to amend the ATA.
This directive comes after the proposed Anti-Terrorism Bill of 2010 has been pending with the Parliamentary Committee on National Security for more than a year. The delay has been on the concerns that the proposal puts restrictions on human and civil rights of the citizens.
There is a general agreement that the ATA of 1997 is horribly outdated in dealing with the changing face of terrorism in Pakistan. The Act has been amended through presidential ordinances on various occasions between 1997 and 2010. But lawmakers still have been unable to plug legal lacuna undermining its effectiveness. Many critics including the Amnesty International, have expressed their concern over its flaws. The present government, through a series of presidential ordinances, promulgated a version of the ATA earlier imposed by former President Musharraf. But the government is now at an impasse since the 18th Amendment has removed the president's authority to promulgate ordinances.
Thus a proposed bill, drawing heavily from the previous ordinances, is now in the works to be passed through the legislative arms of the government. The proposal presented by Interior Minister Rehman Malik contains some much-needed amendments. On the whole, the bill aims at expanding the powers of the investigators. The positive amendments include prohibiting banks to give any financial support, whether through loans or credit cards, to members of banned outfits, prohibiting members of banned outfits from obtaining passports, and making FM broadcasts without approval from the government a terrorist offence.
But there is a darker side to the proposal as well, which has caused the Prime Minister to seek new recommendations as the current ones will face difficulty in Parliament. The bill seeks the addition of a new section titled "Presumption of proof against the accused". Under this, any person found with explosives will automatically be considered a terrorist till proven otherwise. This flies in the face of the basic supposition the law extends to the accused that he/she is presumed innocent till proven guilty. Similarly, under the new bill, the authorities would have the powers to detain a person without any charge for up to 90 days and the detainee would not have the right to appeal to the court. The proposal also seeks to curtail the power of the Anti-Terrorism Courts (ATCs) to grant bail to people charged under the ATA.
The security situation in Pakistan is steadily deteriorating. From religio-ethnic cleansing of Shia Hazaras in Balochistan to the attacks on security forces in Fata, to suicide attacks in broad daylight in the major cities across the country to the targeted killings in Karachi, the justice system of the country has been ineffective in capturing and punishing the culprits. According to some estimates, over 75 percent of people charged under the current anti-terrorism laws are released by the courts. The ATA and the ATCs are clearly not performing adequately.
Yet the problem does not lie solely with the effectiveness of the anti-terrorism law. The entire machinery of justice-delivery, from surveillance to arrests to evidence gathering, is flawed and requires an overhaul. When we have examples like Malik Ishaq of the banned Sipah-e-Sahaba, who was acquitted on 45 cases out of 100, only because of incompetency in preparing cases against him, it is imperative to look where these gaping loopholes are.
The evidence-gathering for crimes here relies heavily on human intelligence and eye-witnesses instead of forensics. And even then, there is no witness protection programme to ensure safety of those who are courageous enough to speak up. Since there is a good chance the accused will be released by the court, eye-witnesses are naturally extremely hesitant to step up.
The ATA of 1997 does not provide nearly enough cover for all aspects of today's terrorism. But while developing the strictest of policies to deter and stop terrorists, the stakeholders must also ensure that the investigation agencies, already known for their notorious interrogatory tactics, are not given powers to abuse the law against innocent civilians. Most importantly, the government needs to strategise to reform and train law enforcement agencies on which the prosecution relies for solid cases. Otherwise the new laws will not go much further in controlling terrorism.
Published in Business Recorder (9 October 2011).
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