By Asad Jamal

clip_190In the last couple of years, the government has promulgated several anti-terrorism laws as well as amended existing that have been criticized for trampling on universally accepted standards of human rights.

The latest legislative measure in the list is the Protection of Pakistan Ordinance Amendment 2014, which builds on the toxic legacy of the Protection of Pakistan Ordinance (PPO) 2013, the Action in Aid of Civil Power Regulations 2011 and several amendments to the Anti-Terrorism Act (ATA) 1997. The amended ordinance, along with some amendments to the ATA, is now pending consideration before the Senate after its passage through the National Assembly.

The government apparently believes that civil liberties are a necessary sacrifice in the war against terrorism.

Secondly, it also assumes that legislation on its own can curb terrorism and that the failure of a law is actually an indication that it is not strict enough. Though there is no evidence to suggest that more and harsher laws can automatically counter terrorism yet the government continues to promulgate them without focusing on improving policing, prosecution, collection and analysis of forensic evidence and intelligence gathering. In doing so, the government continues to avoid looking into the impact and consequences of anti-terrorism laws.

Various provisions of the PPO — ostensibly aimed at providing for “protection against waging of war against Pakistan” as well as for speedy trial of offences it covers through a parallel system of special courts and a specialised prosecution agency — reduce constitutional and legal safeguards, including the ones under international treaties like International Covenant on Civil and Political Rights and UN Convention Against Torture, against arbitrary actions by the law enforcement agencies.

First and foremost, it shifts the burden of proof to the accused in the offence of waging of war against Pakistan. Agreed that a similar shift in the burden of proof occurs in cases dealing with possession of narcotics but then waging of war against Pakistan is primarily a political offence which may or may not involve tangible evidence whereas possession of narcotics in itself is solid enough proof for prosecution and punishment.

The PPO also provides for indefinite preventive detention as well as detention in undisclosed internment camps on undisclosed grounds. It grants immunity to intelligence and security agencies if and when they violate the rights to life and personal liberty which are both fundamental human rights guaranteed by the constitution and international human rights law. More specifically it grants blanket immunity from prosecution to state agencies which, over the last many years, have been responsible for the missing persons’ phenomenon in Balochistan and elsewhere in the country.

The PPO unnecessarily includes the members of armed forces in the process of investigation. Coupled with some amendments to ATA, the Ordinance also grants powers to law enforcement officials to shoot at sight.

Amendment to ATA’s section 21-H departs from the time-tested principle of not admitting confession before police as legally valid evidence. It, thereby, creates the possibility of confessions extracted by police through torture in anti-terrorism cases become admissible in courts of law. Together, these legal innovations provide ample scope for torture of the accused and abuse of powers by officials of the law enforcement agencies, including those belonging to the armed forces. Certainly, the government has not examined at the policy level the serious consequences these enactments and amendments can have on democratic and rights-based culture in the country.

Najam U ddin has pointed out in his 2006 study, titled “Terrorist Unless Proven Otherwise”, that all anti-terrorism laws introduced in Pakistan since 1974 have encroach upon fundamental freedoms of personal liberty, speech, opinion and assembly and have hugely compromised the legal principle of “innocent unless proven guilty”. The study also shows that ATA lacks basic legal and judicial safeguards such as due process in court proceedings and adequate mechanisms to supervise the trial courts. Even after adopting such legal and judicial shortcuts, however, the act has failed to achieve its stated goal of bringing the perpetrators of terrorism to justice speedily.

The International Commission of Jurists, visited Pakistan in March 2007 and made similarly important observations. The panel reported that culture of secrecy had become a norm in the investigation of terrorism cases and suspects were placed under secret and arbitrary detentions in such a way that they could not avail of basic protections afforded by human rights standards, international human rights and humanitarian law and constitutional guarantees. Based on experience in Pakistan and elsewhere, the panel — in its report titled Assessing Damage, Urging Action — argued that counterterrorism efforts which violate basic rights result in further alienation of communities and serve as a recruitment tool for militant groups.

Despite evidence that unduly stringent laws which infringe upon fundamental rights only have adverse consequences, many states continue to justify them in the name of extraordinary post-9/11 circumstances that they face. And while harsh laws, which seriously compromise human rights standards, continue to be promulgated, there is no sign that they are helpful in curbing terrorism – in Pakistan and elsewhere.

In the legal discourses, there is a lot of emphasis on raising conviction rates in cases of terrorism. Though it is open to question whether the Pakistani variety of terrorism, which includes the suicide bombing phenomenon, can be effectively and realistically deterred through higher conviction rates, there is no empirical study which exists to prove or suggest as much.  Even if so, the best of states’ ability to raise conviction rates beyond a certain point is open to question and something which barely ever figures in the dominant legal discourse. Those who do not directly refer to conviction rates as necessarily leading to curbing of terrorism seem to otherwise imply so by arguing for limitation of rights and granting of greater powers and say in the formulation of counter-terrorism strategies to the national security establishment i.e. the armed forces.

Those who argue that stringent laws will lead to higher rates of conviction must look at the reports prepared by the Provincial Prosecution Service in Punjab. These reports show that the lack of stringent laws is not the reason for failure in raising conviction rate to a satisfactory level. Of the 559 cases heard by anti-terrorism courts in Punjab in 2012, the accused were convicted only in 145 cases. Not all these cases involved bomb blasts or other acts of public violence though – some of them pertained to armed robberies, kidnapping for ransom and the use of firearms. In 414 cases, the courts acquitted the accused – out of these, 124 acquittals happened on the ‘merits of the case’ and in 19 cases the parties involved reached a compromise. As many as 271 terrorism cases were dismissed and the accused acquitted because the witnesses recanted.

Trial courts acquitted the accused in 74 percent of all the cases cited in a research paper, titled Why Do Terrorism Cases Fail in Court? and written by Syed Ejaz Hussain, a former deputy inspector general of police. In almost all these cases, the writer explains, the courts used a combination of three reasons to acquit the accused:

  • defects in the registration of cases,
  • defective investigations, and
  • defects at the prosecution stage.

The third reason includes witnesses becoming hostile (giving statements that do not help the prosecution case), witnesses not appearing to give evidence, witnesses recanting or changing their statements. Hussain also points out that it is the fear of terrorists among witnesses and prosecutors which leads parties to reach a compromise and witnesses to become hostile, or take their statements back or fail to record evidence at all. Of the 231 cases of acquittal he cites, witnesses became hostile in 86 cases, no witnesses showed up in 48 cases to record evidence, witnesses recanted or compromised with the other party in another 48 cases and witnesses changed their statements in 23 cases.

Clearly, lack of harsh laws is not the reason for failure to raise conviction rates in terrorism cases and consequently curb terrorism. Yet the emphasis on the need for more stringent laws continues to exist.

One reason for the existence of such an emphasis is the generally poor level of legal discourse on the issue. Ali Zafar, a Supreme Court lawyer, writes in a recent op-ed that after admitting that fundamental rights guaranteed under the constitution are inalienable, he argues: “…the state comes before the constitution, law and human rights! If there is a threat to the country then there is no time to discuss legal niceties; people have to unite and accept the fact, without argument [emphasis added], that there is a need for laws, howsoever very harsh or rigid, which allow maximum leverage to the law-enforcing agencies and courts to bring perpetrators of terrorism to justice. Such laws may not strictly be kosher — they may encroach upon fundamental rights. But extraordinary situations need extraordinary laws.”

Zafar argues, as have many others, that many countries have had to make laws to deal with terrorism and that these laws have been helpful in stemming the rising tide of domestic and international terrorism. The United Kingdom, for example, has had such laws for the last 30 years, initially to deal with trouble in Ireland. Anti-terrorism laws in that country were further strengthened as time went on and now the United Kingdom has stringent anti-terrorism legislation which it went ahead with despite criticism from human rights groups. There are indeed people in British establishment who want such laws even harsher by allowing the detention of terrorism suspects without charge for 42 days, not just 28 days as is the case now.

Similarly the United States passed the Patriot Act after the 9/11 attacks, a law which carried with it harsh provisions that severely stripped civil liberties.  Many of these provisions still exist in some form today.  Indefinite detentions of suspected persons without due process and searches without permission or knowledge continue to occupy space in the legal landscape in the West.  Australia not only allows police to detain suspects for up to two weeks without charge, it also has a “shoot to kill” clause in its anti-terrorism law. So, the argument goes, it seems logical that Pakistan should have even more stringent laws in view of the frequency of terrorism in this country.

But rarely do we hear about other factors which may have contributed to the effectiveness of counter-terror policies in the West — intelligence gathering, effective use of intelligence and community policing, for instance.

India’s Prevention of Terrorism Act 2002 (POTA), for instance, was unleashed as a counter-attack to the bombings of the Indian Parliament.  Outfitted with extreme vagueness, terrorism under POTA was made into what advocate Vrinda Grover called a “catch all category for inclusion of any and all actions” and left entirely to police discretion to decide what constituted a terrorist act and who was responsible.  Suspects could be detained for up to 180 days without the filing of a charge-sheet, witnesses identities could be withheld by law enforcement, and confessions, possibly made due to torture, were admissible in court due to a lack of accountability mechanisms.

Eerily familiar, Article 22(3) of India’s Constitution explicitly stated that “enemy aliens”, though undefined, are outside the purview of protection of that Article, as are cases of preventive detention.

When POTA was repealed in 2004, the Unlawful Activities Prevention Act (UAPA) 2004, with amendments made in 2008 and 2012, filled in the empty space that was left behind, with draconian provisions resurfacing such as 180 days of preventive detention.  The UAPA, still in effect, also bans membership in organisations such as the Students Islamic Movement of India.  This clause has sanctioned the police to arrest scores of young Muslim men in Madhya Pradesh, among other states, on invisible evidence and due to invisible accountability.

 

Ahmer Bilal Sufi, another Supreme Court lawyer, seems extremely eager to treat the Pakistani state as the greatest protector of people’s fundamental rights even when evidence is overwhelming against such a notion. In a recent newspaper column, he wrote: “The idea is very simple. If you are loyal to the state and obedient to the constitution, the state is there to guarantee your fundamental rights. But if you are waging war on the state and attacking it ruthlessly, and when apprehended you come running to the institutions of the very state that you are attacking, then the state will not facilitate you in filing any proceedings and walking free to wreak havoc again.”

Sufi is clearly arguing that once the state even accuses someone of the offence of waging war against itself – and Pakistani state has accused internationally known writers, poets, journalists, human rights activists and political leaders of doing just that — then that person should not be considered entitled to any protections as far as his human rights are concerned. At another occasion, Sufi by implication argues for curbing the freedom of the press, seeking the incorporation in national security policy a questionable 2012 judgment by the Balochistan High Court which could have serious implications for the freedom of the press.

Colm Campbel, who heads the Institute of Transitional Justice at Ulster University, explains the rationale for such emphasis in legal discourse on sacrificing fundamental liberties in order to fight against terrorism. He says dominant discourse, particularly in law, relies heavily on the variants of the “crisis models” which postulate terrorism as a crisis to which the state must respond generally by using law to limit human rights. This, according to Campbel, is a discourse along “terrorology lines” which sees state not as the creator of the crisis but as responding to it. It may be argued that more and stringent legislation could be a ploy by the state to present itself as seriously responding to the crisis of terrorism. This could be a failing state’s attempt to stay relevant to the citizens.

The dominant legal discourse, as Campbel points out, generally sees the need for limiting human rights as self-evident: the only questions being by how much and what kind of balance to strike. He contends, and this is evident in Pakistani discourse too, that it is rarely explained how limiting human rights will contribute to the effectiveness of the state’s response to terrorism, an exercise which should obviously and necessarily involve engaging with real life data.

Some Pakistani legal experts find a human rights perspective alien to the extraordinary circumstances that Pakistan faces now. As Faisal Siddiqi, a high court lawyer, has recently argued, Pakistan is a weak and collapsing state and to expect implementation of fundamental human rights by a weak state is to live in fantasy land. He contends that it is not possible to ensure fundamental rights and implementation of the law in a collapsing state. He also argues that the principle of presuming an accused innocent until proven guilty cannot be strictly enforced in a state with a collapsing criminal justice system. In his opinion, “a fundamental rights regime in a weak state is hollow because a constitutional document on paper is difficult to defend in the midst of anarchy”. Siddiqui suggests that “weak anti-terror laws are manipulated by people employing terror by obtaining unjustified judicial relief”. Since laws alone may not be helpful therefore, “executive methods may be needed to deal with political and religious violence and various other forms of criminality and also different laws for tribal areas. One law for the entire country, and for all forms of extreme violence, is no solution”.

Siddiqi, however, refrains from explaining those executive methods. Anyone familiar with Pakistan’s counter-terrorism policies should be able to tell that Pakistani state has unsuccessfully used enforced disappearances for about a decade as an “executive” tool to suppress terrorism. Yet the state continues to fool itself  that enforced disappearances are an effective tool to curb terrorism. Rarely do we see lawyers pointing out how this draconian tool has been used to suppress even legitimate dissenters such as in Balochistan.

Similarly, there is ample evidence to suggest that Action in Aid of Civil Power Regulations 2011, applicable only in tribal areas, were, indeed, used to legalise enforced disappearances as these regulations provide for internment centres for alleged suspects arrested in “conflict” areas. The so-called Adiala 11 suspects were shifted to internment centres established under the regulations after being whisked away from outside the Adiala Jail in Rawalpinidi. Their abuse at these internment centres is now well-documented and well-known. Some of them appeared before courts with their emaciated, ghost-like, bodies bearing visible marks of severe physical and mental torture. Promulgating different laws for different parts of the country, therefore, has already proven to be a wrong policy choice.

The argument about a weak state’s inability to enforce human rights must also apply to its inability to implement any laws it enacts. The recently enacted Right To Fair Trial Act, 2013, primarily meant to allow gathering of digital, electronic evidence through modern gadgets and make it admissible in criminal cases, is a case in point. Since the enactment of the law (which is decidedly stringent), not a single warrant for surveillance of electronic communication has been obtained from the courts. What is surprising is that no proponents of stringent and harsher legislation over national security issues have bothered to raise questions about the state’s failure to implement the law. Is it the weakness of the state that cause ineffective implementation of laws or is it the state’s lack of willingness to try the perpetrators and bring them to justice through due judicial process?

Harsh anti-terrorism laws can be counterproductive if they are misused which is often the case. These laws give a sense of invincibility to state agencies charged with the task of maintaining law and order. Officials of law enforcing agencies, empowered through such laws, tend to overreact in, for instance, arresting people indiscriminately and torturing suspects and innocent people.

Sameera Rashid, a researcher with no legal background and affiliated with the government of Pakistan, refers to three important consequences of stringent laws in her analysis of India’s post-Mumbai attack counter-terrorism legislation. According to her, one consequence of “strengthening” of anti-terrorist laws is that they can be selectively used against vulnerable segments of population — in India’s case against minorities — especially in regions with a history of communal riots. Secondly, Rashid points out, anti-terrorist laws can also turn the population of a state into its “primary enemy”.  Thirdly, she argues, anti-terrorist laws can be misused in a state where law enforcement machinery is corrupt to the core. Those with single-minded focus on “strengthening” laws as a tool to fight terrorism seem to be incapable of raising such questions.

Security during terrorism is a complicated reality, but the slow machine of the state must not be allowed to use shamefully unexamined and isolated lies to ignore usable truths.  Better trained police, well-versed prosecutors, forensics and informed intelligence services can create a narrow exit through which Pakistan’s future can squeeze through.  For reasons stated above, this will take time, but for reasons stated above, effort is all there is left.