The Anti-Terrorism Law Of Pakistan—Need For Reform

POWERS UNDER ORDER VII, RULE 11, C THE ANTI-TERRORISM LAW OF PAKISTAN NEED FOR REFORM By Zulfiqar Hameed BACKGROUND: The primary counter terrorism law of Pakistan, the Anti-Terrorism Act 1997, is a federal statute that was enacted in August 1997 (the Act hereinafter) and was adopted by the provinces. It was meant at the time to deal with the menace of ethnic and sectarian terrorism and was enacted in the backdrop of the heightened attacks and terrorist acts in the decade of the 90s. It was felt that there was a need for specialized legislation on the subject in order to expedite the process of adjudication of cases of terrorism. The Act established special Courts with additional powers and a much lighter workload with summary procedure to ensure quick disposal of terrorism cases. It provided some additional powers to the law enforcement agencies and gave a wide (albeit nebulous) definition of terrorism and terrorist acts. It enhanced the punishments for such acts and tried to cover the activities leading to the phenomenon of terrorism. It appears however, with the benefit of hind sight, that the Act has not given the desired results and has not proved to be an effective legislative response to the threat of terrorism. The specter of terrorism has been haunting Pakistan for the last five years, again, with a renewed force and a ferocious intensity not seen before. The phenomenon of terrorism has metamorphosed in Pakistan and has left the law struggling to cope with the new challenges thrown up by these developments. An analysis of the incidents of terrorism in Pakistan shows an exponential increase in the number of incidents and casualties during the last three years for the period between 1974 and 2007 (33 years) the number of incidents was 2590 with an average of 78.5 incidents per year. The number of incidents was 1929 in just the three years of 2008 to 2010 with an average of 643 incidents per year. The average number of incidents per year has increased more than eight times when we compare the two periods. In the 33 year period between 1974 and 2007, the number of people killed and wounded in terrorism incidents was 5840 and 11597 respectively. Averages of 177 people were killed each year while 351 were injured due to terrorism each year during this period. During the three years of 2008 to 2010 the number of people killed and wounded respectively was 4286 and 8264. This translates to an average of 1429 being killed and 2755 being wounded each year during this period. The average number of people killed and wounded in terrorism incidents per year has increased eight times, proportionate with the increase in the number of incidents per year. This data clearly demonstrates that the phenomenon of terrorism has increased immensely during the years after 2007 and underscores the importance of an effective response. There are a host of reasons for this including geo-strategic considerations, the ineffectiveness of the criminal justice system: as a deterrent for terrorism, the non-resolution of underlying issues leading to conflict and the relationship of the Pakistani State with its people. However this article has limited itself to one facet within the overall appellation of the perceived ineffectiveness of the criminal justice system. The ineffectiveness of the criminal justice system stems in part from the legislative framework in which it operates. It is felt that the legal framework has several short comings leading to an enervated response from a law enforcement and adjudication point of view. This article looks at the areas which are in need of reform and suggests changes in order to ensure that there is an effective legislative framework in place to address the threat of terrorism being faced by the country. Comparative developments in other countries have also been kept in mind and have been briefly mentioned where appropriate. CHANGED MILIEU: The Anti Terrorism Act 1997 (the Act) was drafted at a time when there was a need to address the issue of ethnic/sectarian terrorism and attacks. Several characteristics marked the phenomenon of terrorism in the 90s. Some of these are as follows. Firstly, these attacks were motivated by ethnic and sectarian hatred. Secondly, they generally targeted important personalities from the law enforcement agencies or the opposite group and took the form of murders or murderous attacks. Thirdly, the perpetrators were mostly alone even though in some cases assisted by a small group. Fourthly, the weapons used were fire arms like hand guns and semi automatic rifles. Finally, the area of operation was limited or at least was not geographically very vast. In juxtaposition, the terrorist threat in the post 9/11 scenario has evolved so much that it has become almost entirely distinguishable from the earlier phenomenon of sectarian terrorism. The differences are as follows. Firstly, the terrorist attacks have been mostly suicide attacks, or in some cases, remote bombings with the targets being on a much bigger scale'. Persons being killed and wounded in terrorism incidents during the period between 1973 and 2007 show that 4354 were victims of attacks involving fire arms, 7543 people being hit by explosives and 3361 were victims of attacks involving suicide bombings. However, the number of people killed and wounded per incident is drastically different. In attacks involving fire arms, an average of 4.3 persons were killed and wounded per incident during this period. Attacks involving explosives killed and injured an average of 9.4 persons per incident, almost double the average of fire arms. However, the average number of persons killed and wounded per incident involving suicide bombing is 42, ten times the number involving fire arms, thus showing the damage inflicted by suicide bombings Secondly, the weapon of choice for terrorists has changed from firearms to explosives. During the years between 1995 and 1997, the number of incidents involving fire arms was in the hundreds with a little less than 300 incidents involving fire arms in 1995. Explosives were used in less than 20 incidents per year during these years. Explosives dominated the scene of terrorism during the years after 2005 with more than a hundred incidents involving explosives in 2006 and more than 175 incidents involving explosives during the year 2007. Thirdly, the lethality of the attacks has increased manifold resulting in casualties at times in hundreds. Whereas the number of people killed and wounded per incident was two in 1995, it rose to 15 persons being killed and wounded per incident of terrorism in 2007. Fourthly, the targets have been security as well as law enforcement forces, important personalities, installations having national or symbolic, significance and religiously important buildings or personalities. During the nineties, the top target of terrorists was police with around hundred attacks on the police during 1995 alone. During the years after 2006, the top target has been military forces followed by police and educational institutions. Fifthly, the groups involved in attacks are much larger in size as compared to the past and are assisted by a network that in some cases may be international, if not national, in scope. Sixthly, the financial resources at their disposal have been considerable. Seventhly, in some cases there have been wide spread armed insurgencies with whole areas being temporarily under the control of terrorist elements. In many cases there was wide geographical area involved with the supporting group being spread over hundreds of miles and being available to provide planning, support, sanctuary and assistance to the actual perpetrators. INADEQUATE LEGAL RESPONSE: This evolving threat had obviously not been foreseen at the time of the framing of the Act and it was meant primarily to cater to the threats of a limited, sectarian terrorist phenomenon. As a consequence, there has been limited success in getting the culprits punished through the criminal justice system. This in turn gives rise to the feeling that the legal system cannot adequately respond to the threat of terrorism. There are several reasons for this failure but one of the several important reasons is the fact that the law on the subject has not been ,updated to respond to the evolving threat of terrorism. The other reason for inadequacy is the want of exactitude in legal provisions. The loose definition of terrorism and terrorist act has resulted in considerable ambiguity' as well as the application of the Act in many cases where it should not have been applied. Many cases like murder, attempted murder etc. which can and should ordinarily be covered under the Pakistan Penal Code (PPC) have been registered under the Act whenever some sensation has been attached to the surrounding circumstances. This has been possible due to the loose wording in the Act. The background reason however has in many cases been a wish on part of the complainants or police to ensure a higher sanction of the law with possibility of a stricter punishment which is more probable under the Act. Some new categories like acid throwing on women and kidnapping for ransom have been added under the scope of the Act because of this wish for a, stricter penalty for these offences. This has led to the dilution of the deterrent effect of the Act and has resulted in a higher rate of acquittal. Kidnapping for ransom should arguably form a part of the Act only where the motive is related to terrorist acts or organizations. An indirect consequence of the liberal application of the Act is that real acts of terrorism involving 'weapons of mass destruction (which really should be covered under the Act) receive a more liberal handling through the legal system than required for such heinous acts. A better approach would have been to prescribe higher punishments and stricter procedure (for offences like acid throwing on women) through separate legislation or as part of the Pakistan Penal Code without making such offences a part of the Act. Offences like murder or attempted murder already adequately covered under the P.P.C. should not be allowed to be registered under the Act. This would result in better prosecution under the Act for acts of terrorism thus enhancing the deterrent effect of the Act. Lack of an enabling environment for application of the Act also hampers its effectiveness. This includes a lack of witness protection programs and a lack of adequate responses to phenomena like terrorism training and financing. AREAS REQUIRING REFORM: The areas identified as particularly inadequate in the Act in terms of required legislative changes have been classified into five categories viz., defining new offences or categories of offences under the Act, adequately catering for aiding or abetting acts of terrorism, reviewing the penalties under the Act, procedural issues under the Act and the need to enhance the powers of Law enforcement agencies and Special Courts as remedial measures. DEFINING NEW OFFENCES: There is a need to cater for new types of crimes through new definitions and new offences in the Act. Following points summarise the areas needing attention: (1) There is a lack of comprehensive definitions in the Act especially the new types of crimes witnessed in the last five years. As example, there are no definitions of suicide attack, conspiracy or planning for a suicide attack, suicide bomber, armed insurgency and planning to cause wide spread disaffection against the State. Attacks causing wide spread damage have nowhere been defined as a special category entailing higher penalties. The definition of terrorism or a terrorist act also needs to be improved so that any attack attempting to or resulting in mass destruction or wide spread damage should be included In the definition of terrorism. The US law defines such attacks in a separate category and 'weapons of mass destruction have been separately treated in that law. (2) The Act does not have federal offences unlike the laws in the US and UK which have such categories of offences. Crossing provincial boundaries for an act of terrorism, transportation of explosives and planning acts of terrorism across provincial boundaries through use of explosives are examples which readily come to mind in this regard. Crossing provincial boundaries with explosives, assisting in transport of explosives and planning for trans-provincial acts of terrorism should all be created as new federal offences in the Act. These offences are federal in nature and should not be limited to investigation by the provincial police forces. Due to the very nature of these offences, it is not possible for a province to take cognizance of the entire chain of events comprising the offence which is inter-provincial in nature. (3) There is a need to create a strict liability offence in the form of possession of a minimum quantity of explosives and harboring people with such explosives. Anyone found to be illegally in possession of explosives beyond a certain quantity should be subject to minimum and maximum penalties prescribed by law. The Act already provides a presumption of proof against accused for possession of explosive substances. However the possession of such materials per se should be the offence so as to preclude the need for proving that it was intended or was planned to be used for an act of terrorism. A relevant example is the strict liability crime of possession of narcotics in the Control of Narcotic 'Substances (CNSA) Act of 1997. In that Act the penalties are enhanced in tandem with the increasing quantity of narcotics in possession of an accused. This scheme should be followed in terms of enhanced punishments in proportion with the increase in the quantity of explosives possessed. The US Federal Sentencing Guidelines also take a similar approach with enhancement in level of punishment commensurate with an increase in the quantity of explosives possessed by the suspect of terrorism10 . So for example, the possession of a kilo of high explosive should entail a punishment of imprisonment of up to five years while possession of more than ten kilos may entail death or imprisonment for life. In fact it can be very reasonably argued that possession of explosives is a much more heinous offence than possession of narcotics due to a much higher potential for causing damage to the society. Keeping in view our recent history, this offence should entail a much higher degree of opprobrium of the society in the form of stricter punishments. (4) A special category of offences for attacks on security installations, armed forces, Law enforcements agencies and their facilities should be created. Any symbol of national importance should be included in this category. Attacks on the Sri Lankan cricket team, GHQ, Mehran Naval base, Police academies in Manawan and Sargodha and FIA buildings underscore the importance of having such a separate category. The US law includes such 'special categories like attack, kidnapping or assassination of the President, the Vice President or any member of the staff of the President or the Vice President which could be considered here also so that symbols of national unity or importance should have a special status and attacks on these should have a minimum of death penalty attached to them. (5) There is no provision in the Act to cater for attacks on highly sensitive installations like nuclear installations or critical national infrastructure. There is a need to create a special category of offences for any attempt to take over or damage an installation or building related to national security like nuclear installations and installations related to critical national infrastructure like dams, transmission wires, pipelines etc. (6) The specter of attacks using chemical biological or unconventional weapons has haunted several countries in the world in the recent past. A separate provision needs to be made for such attacks. (7) Recoveries of explosives and weapons are covered under the Explosive Substances Act 1908 and the Pakistan Arms Ordinance 1965 respectively and are not an offence under the Act. This practically means that possession of arms, even if they are high caliber or automatic weapons, are covered under the Arms Ordinance and are considered offences with little possibility of a punishment like imprisonment. Most cases under the Arms Ordinance are punished with a fine which usually is not a large amount. Historically, the courts have been very skeptical and reluctant in awarding punishments under the Arms Ordinance and this tradition carries over even into cases that are registered under the Act. This means that possession of arms with relation to terrorist acts does not result in as heavy a penalty as it deserves. Similarly, the Explosive Substances Act is an antiquated law that does not adequately provide for the new circumstances. There is a need to define the new offences of possession of weapons. and explosives connected with terrorism in the Act with a much higher penalty and the offences being covered under the. Act. Explosives Act's provisions should be made a part of the ATA Act. B. ENHANCEMENT OF PENALTIES: (8) Defining the types of explosives the possession of which should entail punishments like death (suicide vest, anti-personnel mines, RPGs, rockets, anti-aircraft guns etc) would ensure exemplary punishment and a measure of deterrence that is much needed in the circumstances. (9) Possession of a certain amount of explosives e.g. a kilo of explosive as opposed to tons of explosives and a certain number of weapons against one weapon goes to show the need for tying penalties for such possession with the number or quantity of weapons and explosives. There is a need to convert possession of explosives and weapons to a strict liability crime under the Act provided there is a sufficient nexus with a terrorist plan or attack. As the quantity or number of recovered weapons or explosives goes up, so should the penalty on the analogy of possession of narcotics. (10) Attacks on persons and places having a national symbolic significance, defence related facilities, nationally important installations or infrastructure and nuclear facilities should entail special penalties having a minimum punishment of imprisonment of life and a maximum punishment of death. This penalty can also be extended to the unauthorized possession of nuclear, chemical or biological weapons. (11) Penalties for all newly defined offences as enumerated in the section supra (suggesting new categories of offences) should be stricter with clearly laid down legislative guidelines for minimum punishments in order to ensure deterrence. (12) Provision of compulsory confiscation of all properties in favour of State of any person convicted of terrorist attacks should be made in the Act with further enhanced penalties provided if a person previously convicted for a heinous offence is found guilty again under the Act. (13) Penalties attached to facilitating terrorism should be much higher. Acts like training suicide bombers, imparting training in preparation of explosives; weapons training, harbouring terrorists should all be offences punishable with a much stricter regime of punishment. Similarly, propagation and dissemination of ideas or literature leading to terrorism should be a crime punishable with much more strict penalties. Punishment for harbouring terrorists should be much higher than the penalty provided for in P.P.C. for such harbouring as the nature and consequences of both are entirely different. C. ASSISTANCE, AID AND ABETMENT IN TERRORISM: (14) There is a need to extend the scope of the ATA to areas like FATA where it does not operate presently especially where any' link is established with any terrorist activity. (15) There is a serious need to comprehensively treat training for suicide bombing, preparation of any suicide bombers, assistance for this and any recruitment for suicide attacks etc. Providing any type of material assistance or aiding a terrorist organization or a terrorist act should be made an offence with serious penalties attached to this offence. (16) There is no provision for providing assistance within Pakistan to any international agencies in connection with any act of international terrorism having any link in Pakistan. A provision needs to be made with a prescribed mechanism for such assistance. (17) The area of terrorism financing has received a lot of attention worldwide but has been by and large neglected in Pakistan. The sources of terrorism financing need to be identified and appropriate provisions need to be made for all of the sources. One of the most obvious sources is donations by individuals or organizations. In several countries' laws'', such financing, even if done just recklessly and not purposely, is an offence under the law and entails serious penalties. D. POWERS OF LAW ENFORCEMENT AND INVESTIGATIVE AGENCIES: (18) There is a need to provide powers to police and other investigating agencies. like FIA or CTD for monitoring and surveillance of persons, financial transactions and money flows in connection with terrorism. Compulsory reporting and sharing with LEAs of all relevant information needs to be made an obligation for all financial institutions (19) Technical monitoring, wire tapping and other technical facilities for police need to be regulated and provided for through 'a legal framework. There has to be a mechanism for obtaining warrants for these activities -from the ATA courts for these purposes. An example of a similar kind of legal framework is the Foreign Intelligence Surveillance Act (FISA) of 197818 in the US law which regulates the process for these activities.. (20) Police or any other investigating agency acting under the Act should be able to request and obtain information about a person's travel, residence, telephone calls, financial transactions or any other relevant information from any source about any named person. Even though in theory the law has given some powers in this respect to the police, in practice these powers are limited and require several authorizations thus considerably delaying the process of investigation. Clear powers need to be conferred on the investigation agencies for expedited investigation. (21) There is a need to have an effective victim and witness protection program under the Act. The Police and the court should be empowered to 'take all necessary steps' to ensure that the victims and witnesses are effectively protected in Trials of terrorism. These steps could involve image and voice distortion, closed sessions, hidden identity of witnesses and any other measures considered necessary and expedient in the interest of justice and protection of witnesses. (22) Special Courts should have the power to conduct trials incognito, under appropriate circumstances, in order to protect the identity of the judges, investigating officers and witnesses. This means that where circumstances warrant, the government should be able to authorize a trial which does not involve the judge and witnesses being visible to the accused and the trial being conducted either through one way video conferencing or one way glass partition so that the judges and witnesses are not visible to the accused. This is especially relevant in cases where a jail trial is thought expedient. E. PROCEDURAL ISSUES: (23) There is a need to amend the law of Evidence as well as the Act to make the testimony of police officers admissible in evidence. In many countries of the world this the case and is especially important in the context of terrorism cases where witnesses are not forthcoming due to fear and oral testimony is given a lot of importance. The Act had already .made admissible in evidence a confessional statement in front of an officer of the level of Superintendent of Police. However, necessary amendments are needed in the Evidence law i.e. the Qanun-e-Shahadat Order also to take care of the substantive law in addition to the amendment in the Act itself. There is also a need to amend the law in order to make the circumstantial evidence also admissible in terrorism cases. (24) Safeguards need to be built into the Act to ensure that it is not misused. A much more precise definition of terrorist act and circumstances where it can be applied needs to be provided in the Act to preclude the possibility of abuse. Prior permission, in writing, of the gazetted police officer concerned for registering a case under the Act may be provided for as a legal requirement in order to provide an additional safeguard against abuse of the Act. (25) Our traditional criminal law gives a lot of importance to the presence on. scene of crime of the perpetrators. The nature of terrorism and more particularly of suicide bombing is such that the presence of all perpetrators on the scene of crime would be a virtual impossibility. An additional complicating factor is the fact that the main perpetrator i.e. the suicide bomber would have died in the act. The person planning the act of terrorism would be somewhere else and most probably. would not be on the scene of crime. It stands to reason that such a person should be the main accused in a case like this. In these circumstances there is a need to come up with a mechanism to do away with the requirement of 'presence on the scene of crime of the perpetrators. There is also a need to move away from the approach of connecting the persons present on the scene of crime to the persons planning the act of terrorism. In such circumstances, the standard of proof required in the Qanun-e-Shahadat Order should be relaxed and circumstantial evidence should be made admissible. This is important especially if perpetrators sitting in remote locations are to be brought into the net of law and are to be punished.