Reforming The Anti-Terrorism Law
REFORMING THE ANTI-TERRORISM LAW
By Junaid Razzaq, Assistant Advocate General Punjab
Pakistan's anti-terrorism law is fundamentally flawed, and hence both inadequate and ineffective. First promulgated in 1997 to control the monster of sectarian killings, the law has seen many minor amendments to provide for the new emerging challenges. But these need-based, post-facto tinkers with the law have not served the purpose. The statute needs an urgent revision and re-organization to make it an instrument fit to deal with the threat of terrorist violence.
What vitiates the law in the first place, is the very vague and expansive definition of terrorism in section 6 of the Statute. As per the law, "terrorism" means the use or threat of action where: (a) the action falls with the meaning of subsection (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." The sub-section (2) referred above provides an inventory of actions dubbed as acts of terrorism, which queerly includes, inter alia, 'doing of anything that is likely to cause death or endangers a person's life; stoning. brick-batting or any other form of mischief to spread panic; creating a serious risk to safety of public; burning of vehicles or another serious form of arson, and serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties.
This broad and loose definition of terrorism in a law specially created to combat terrorism does not help the criminal justice system at all. On the one hand it fails to place a noose around the acts of actual terrorism, and on the other hand, only glorifies simple breaches of law such as nuisance, brick-batting, and coercion directed at a public servant as 'acts of terrorism'. The law also smells rat. It seems to be using the idea of terrorism to protect the state institutions against the public rather than prosecuting the actual terrorists to save the public from their violence. As was logical. this amorphous, vague and all-embracing definition of terrorism led to a serious abuse. and a large-scale misapplication of the law, inundating the Anti-Terrorism Court (ATCs) with cases that had nothing to do even remotely with the terrorists, saboteurs. and militants, but in which, ordinary citizens, now damned as 'terrorists' for relatively less serious and simple breaches of the law, were facing trials at the ATCs. Even some very serious and heinous offences where ATA provisions have been applied such as acid-throwing, gang rape, multiple murders, etc, are not acts of terrorism per se. According to one study, acts of terrorism in which explosives are used (IED attacks, suicide bombings, etc.) to cause widespread damage. and large-scale violence are less than 5% of the total cases registered under ATA 1997. This state of affairs embroils the ATCs in trial of ordinary crimes exaggerated as acts of terrorism, emasculating their effectiveness, leading to long drawn trials, growing pendency, and high rates of acquittal.
In addition to wrongly defining terrorism, the Act also suffers from other flaws. It fails to comprehensively deal with the issue of financing of terrorism. Amendments have been introduced to fill this gap, but the issue needs a comprehensive treatment. Similarly, there are no provisions determining the rules of procedure and evidence in terrorism cases. The prosecution and trial procedures are dependent on the old, antiquated Indian Evidence Act 1872, re-christened as Qanun-e-Shahadat Order, 1984. To fill this gap, the Investigation for Fair Trial Act 2013 was promulgated, which has failed in practice owing to the cumbersome procedures involved in obtaining a court order for surveillance. During the past decade, a number of new offences of terrorism have emerged that are neither defined properly nor penalized adequately in the Act, such as suicide bombing, the Improvised Explosives Device (IED) attack, the Vehicle Borne Explosive Device (VBED) attack, the possession of explosives for a terrorist attack. etc. For punishing these acts, the justice system has to rely on general definitions, and on punishments provided for the possession of explosives in the old, outdated Explosive Substances Act 1908.
It is obvious now that Pakistan needs to reform its whole anti-terrorism legal regime in order to effectively deal with the menace of terrorism. The starting point has to be the ATA 1997. The law must be revised and re-organized. In its present form, it is an ill-organized piece of legislation. It needs first of all to be divided into chapters on general definitions, definition of offences with penalties, financing of terrorism, federal offences, proscription, persons under watch, rules of procedure and evidence, investigation, prosecution, trial, protective measure for witnesses, prosecutors, and judges, and schedules. In the process of re-organizing the law, it is imperative to make the anti-terrorism law a self-contained piece of legislation with a minimum reliance on other statutes for investigation, prosecution and trial of acts of terrorism. The new law should also cover recoveries made in cases of terrorism such as weapons, and explosives, and provide for penalties in line with the seriousness of an act of terrorism. It is imperative to distinguish, while punishing an offender, between possessing an illegal weapon for self-defence or gun-touting and possessing a weapon for proven intent of committing an act of terrorism.
Reformulating the definition of terrorism and the terrorist acts as superficially and narrowly as possible is absolutely essential to give Pakistan's legal and policy response to terrorism the right direction. It will help the state to focus precious energy precisely where it is required, relieving the ATCs of the burden of trial of cases that do not attract their jurisdiction. It will improve the quality of investigation and trial of cases of terrorism.