An Evidence-Based Approach to Reforming the Anti Terrorism Law: Case-Study of Punjab

POWERS UNDER ORDER VII, RULE 11, C AN EVIDENCE-BASED APPROACH TO REFORMING THE ANTI. TERRORISM LAW: CASE -STUDY OF PUNJAB By Zulfiqar Hameed. Since the beginning of 2005, Pakistan has faced an alarmingly high rate of terrorist attacks. These attacks spiked in 2009 and while they appeared to recede in 2011, the numbers are still worryingly large. Terrorist attacks are not new to Pakistan and as per one estimate; there have been at least 4438 incidents of terrorist, attacks in the country between 1974 and 2010'. These attacks subsided from 1997 to 2005, but touched unprecedented high numbers from 2007 to 2011. Figures of fatalities vary, but as per one estimate, there have been more than 40,000 fatalities, in terrorist attacks between 2003 and 2012 in Pakistan.2 Faced with such a serious onslaught of terrorism, Pakistan must reform its criminal justice system to ensure that the terrorism phenomenon is handled effectively, perpetrators are adequately punished, and the menace of terrorism is brought under control. The law enforcement agencies and the civil legal institutions are the most appropriate forums to tackle terrorism however their performance is anything but satisfactory. The police and other civilian law enforcement agencies are barely equipped to handle the herculean challenge in front of them without a major reform effort'. The police force is poorly resourced, poorly trained, poorly paid, low in morale, scantily equipped and viewed with suspicion by courts and society due to a poor record of regard for human rights. There are minimal forensic facilities and other modern equipment to assist the police in doing its job. The situation in courts is similarly dismal, and there is wide, deep dissatisfaction with the courts' record in punishing terrorists. The courts' contend that the police do not provide enough evidence; the police retort that courts are pro- defendant and the standard of evidence is impossible to attain. In this back and forth, the larger goal of addressing the issue of terrorism suffers. THE EXISTING LEGAL AND INSTITUTIONAL REGIME: Pakistan has a specific law to deal with the cases of terrorism, but it is inadequate in many way. The Anti-Terrorism Act 1997 (The Act) was enacted federally and applies nationally except for the Federally Administered Tribal Areas (FATA). The Act establishes special courts and confers special powers to these courts as well as the law enforcement agencies. Two serious criticisms have been levelled on the law. The first is that it is overly broad and does not have sufficient safeguards against abuse of the special provisions it contains'. The other is that it is ineffective in its actual objective i.e. punishing terrorists.6 While these criticisms may be true, this article argues that an accurate assessment of the law's effect has yet to be determined, due to a critical lack of data. To rectify this critical deficiency, this article will report and analyze data on police performance, the record of cases prosecuted under the Act, the types of cases registered under the Act, and the judicial decisions under the Act. The data relates to Punjab Province, which was selected as a case study because it is both the largest and highest populated province, and because it has been severely affected in the recent spate of attacks from 2008 to 2011. The data relates to the years 2005 to 2011 unless otherwise stated, and has been obtained from the Investigation Branch of Punjab Police, which collects all such data relating to police work in the province. POLICE PERFORMANCE UNDER THE ACT: Police performance can be measured by looking at the number of cases under the Act registered in the first instance by the police, and the ratio of cases that are then ultimately sent to court and tried. Table 1 details these statistics. An important note to consider here is that while the general perception of terrorism cases are those involving bomb blasts, suicide attacks or weapons of mass destruction,'' in actual practice, any case defined by the Penal section as a purported act of "terrorism"8 falls under the jurisdiction of the Special Courts and is investigated and tried under the Act. TABLE 1. CASES REGISTERED AND INVESTIGATED UNDER THE ACT (Data Punjab Police as of 31 December 2011)9 Sr. Year Total Cases Cancel- led Untraced Incomp- lete Challan Complete Challan ATA Deleted U/Inv 1 2005 403 18 37 96 . 240 7 5 2 2006 468 10 21 116 311 5 5 3 2007 541 14 17 143 358 7 2 4 2008 575' 28 39 168 313 6 . 21 5- 2009 729 31 25 246 359 3 65 6 2010 613 81 36 132 306 35 23 7 2011 690 81 17 221 228 25 118 Total 4019 263 192 1122 2115 88 239 In %age l 100 6.54 l 4.78 27.92 52.63 2.19 5.95 Looking at the data in Table 1, several conclusions can be drawn: (a) The total number of cases registered (by the police) and tried (by the courts) under the Act is quite large, more than 4000 in 7 years, averaging more than 574 per annum. (b) A relatively large number of cases are registered incorrectly in the first instance. This conclusion is drawn by looking at cases "cancelled" by the police as "false" (263 cases, 6.5% of total cases), "wrongly applied" and "deleted during investigation" (88 cases, 2.19% of total cases). Collectively, more than 8.6% of the cases are incorrectly registered in the first place. (c) Around 5% of the cases registered are not pursued and declared "untraced" because the perpetrators are not traced, with the possibility of re-opening if subsequent leads arise. (d) The most important number from the point of view of police work is the "Challan" ratio, which represents the number of cases sent to court for trial. A "complete Challan" indicates that the case has been completely investigated, accused arrested and will be sent to court; an "incomplete Challan" connotes that all perpetrators have not been arrested, but the arrested perpetrators have been sent to court. Slightly over 52% of cases are "complete Challan", 28% of cases are "incomplete Challan", and both categories combined, representing the total ratio of cases sent for trial, is only 80%. Considering that these are the most .high-profile cases in the criminal justice system, this number leaves a lot to be desired in terms of police performance. TABLE 2 CATEGORIES OF CASES REGISTERED UNDER THE ACT (% AGE TERMS) Sr. Year Explo- sines Act Kidnap ping for Ransin Police Enco- unter Multi- ple Murde r Murder Acid Throw -ing Others 1 2005 2.24 21.08 26.91 3.59 8.30 0.22 37.67 2 2006 3.92 20.68 22.82 5.53 0.00 0.00 47.06 3 2007 6.02 - 28.09 21.91 3.34 0.00 0.67 39.97 4 2008 6.90 35.23 19.34 3.00 3.75 6.90 24.89 5 2009 5.96 35.95 12.78 3.07 5.11 6.47 30.66 6 2010 3.09 34.27 16.57 2.53 3.51 5.48 34.55 7 2011 4.48 28.50 20.52 3.39 3.65 3.27 36.18 Mea N %age 4.66 29.11 20.12 3.49 3.47 3.29 35.85