Laws and outlaws
By Imtiaz Gul
Friday Times,October 26, 2012
President Asif Ali Zardari recently underscored the "need for consensus" to achieve "the desired results in the war against terror". The president warned against the use of force against a mindset which is widespread in cross segments of the society. This mindset, he argued, dictated evolution of a broad consensus, similar to the one created before the May 2009 operation in Swat.
The president was dot-on as far as the urgency for national consensus is concerned. No disagreement at all. Nor have socio-political cross-sections ever expressed support for the murderous gangs operating in the name or cover Taliban.
But what he omitted was whether his government has walked such a lofty talk since early 2008, and whether the parliament has dispensed its primary duty ie legislation to counter the vicious cycle of terrorism. As of now, the answer to these questions is an emphatic no.
Pre-occupied with self-preservation in the standoff with the judiciary, the ruling coalition did, however, introduce in the National Assembly a draft legislation titled the Investigation for Fair Trial Bill 2012, which will likely formally pave the way for the government to tap phones and use e-mails and text messages as proof in trials.
The proposed law will allow government agencies to access "data, information or material in any documented form... through audio visual devices, CCTV, still photography, bugging, observation or any mode of modern devices or techniques obtained under the Act ... documents, papers, pamphlets, booklets for surveillance," to proceed against terror or crime suspects. Personal "emails, SMS, internet protocol detail record, call detail record and any form of computer based or cell phone based communication, as well as "any means of communication using wired/wireless/internet protocol-based media/gadgetry," will also be open to government surveillance for certain crimes.
Even arrest warrants would be permissible against persons or groups believed to be involved in related offences or suspected to be planning and committing, aiding or abetting offences listed in these laws.
Once passed, the law would arm the intelligence and the police with lethal powers which could be used effectively against criminals and suspects, but legal experts fear at the same time the element of abuse by intelligence and police operatives also raises alarm - particularly in the context of the propensity of individuals to employ power for personal gains or settling feuds.
In essence, the Fair Trial Bill bears semantic resemblance to the American PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), which the US Congress passed in response to the 9/11 terrorist attacks. The PATRIOT Act empowers federal officials with authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. It vests the Secretary of the Treasury with regulatory powers to combat corruption of US financial institutions for foreign money laundering purposes.
The proposed law probably also draws on the Regulation of Investigatory Powers Act 2000, United Kingdom. This act permits government agencies the use of covert techniques by public authorities and requires that "they do it in a way that is necessary, proportionate, and compatible with human rights."
The proposed piece of legislation - the risks of abuse notwithstanding in a culture prone to corruption, abuse of power, victimization of opposition, however necessary - appears to be a good step but it also raises the question - what next? What happens to those arrested for political, terrorist or criminal offences? Do we have a legal framework that covers fearless prosecution of persons or groups involved in offences that directly impinge on national security and are a source of instability?
All we have has it the Anti-Terrorism Act (ATA) of 1997 - the product of circumstance created by a vicious sectarian violence that had been raging in the Punjab in particular since mid-1980s.
Barring a few minor amendments in 2000, the ATA still governs the anti-terror trials but legal experts, particularly those dealing with such cases, are skeptical about the utility of this law in the current circumstances. The federal cabinet, it appears, is still sitting over a draft legislation that is supposed to upstage the 1997 ATA.
"This law hardly provides matching response to the alarming levels of threats that we face today," a senior prosecutor told me recently. Based on this, none of the militants, particularly the accused affiliates of the TTP or the TNSM, can be prosecuted.
The prosecutor, who is currently handling about 200 terrorism cases, points out many structural lacunas in the ATA, which he says are the primary reason for a very low number of convictions and high number of acquittals. An official report in August 2012 stated that from 1990 to 2009, out of 311 total cases of terrorism, 231 resulted in acquittals.
The official, who has been on the hit-list of the TTP militants, questions even the definition clause of the ATA. The ATA primarily defines terrorism as the use of force or threat against a person, property or government. This means that there is no bar on hate speeches and rallies promoting ethnic or sectarian divide or violence. The definition requires a more comprehensive, all-encompassing elaboration in order to strengthen the law in a way that could prevent militant organizations from arranging rallies that promote terrorists and extremism.
The prosecutor also points that the Section 11 of the ATA makes terrorism a bailable offense with minimum punishment starting from a mere six months. With this section, it becomes easy for terrorist organizations to delay investigation proceedings and thus walk away clean without any charge. The only way to prevent willful delays and manipulation of the lacunas is to redefine an act of terrorism a non-bailable offense in the ATA, says the official.
Section 19 of the ATA states that the Joint Investigation Team should consist of an officer not less than an Inspector. Considering the limited number of Inspectors with regards to the piling burden of anti-terror trials, this section also needs to be amended to include even sub-Inspectors as mandatory officers, he says.
Prosecuting counsels also complain of the extremely poor quality of investigation and attribute their failure in courts to this very issue. Fundamental, often glaring flaws in the First Investigation Report (FIR), say officials, are a major reason for acquittals or non-convictions. Defense counsels, they insist, easily manipulate those flaws to bail out their clients, or at least stall and drag the trial for years.
That is why the accused even in many major incidents, such as the Marriot Hotel Bombing in Islamabad, Daniel Pearl Murder, or suspects of attacks on General Pervez Musharraf and Shaukat Aziz got off the hook because of poorly drafted FIRs and faulty investigation reports.
Another loophole in the ATA that needs urgent attention is the post-acquittal appeal time against bailout. Section 25 of the ATA provides only 15 days for the prosecution to file an appeal against acquittal or bail. But, officials point out, slow clerical procedures often don't allow them to file appeals in time.
In the absence of a comprehensive anti-terror law, public prosecutors currently are frustratingly uncomfortable. They want better counter-terror legislation and believe that without inducting educated investigation officers equipped with modern investigation tools even the initial process against terrorists or terror-suspects can't be comprehensive enough to prosecute them.
Imtiaz Gul is the Executive Director of the independent Centre for Research and Security Studies, and the author of the forthcoming book Osama: Pakistan Before and After, Roli Books, India