Anti-terrorist laws in Pakistan

KELLIE ORTEGA

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IN 1997, Pakistan adopted the Anti-Terrorism Act, 1997. It was intended to ‘provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto.’

On 13 August 1997, Interior Minister Chaudhry Shujaat Hussain presented the Anti-Terrorism Bill to both houses of Parliament, which accepted it. It was signed by the President on 17 August and came into force immediately. In 1999 the Act was amended which made it more draconian.

On 31 January 2002, another ordinance was issued for the inclusion of military officers in the panel of judges to try ‘terrorist’ offences. This not only undermines the independence of the judiciary but makes the anti-terror law in the country even more draconian. The new ordinance issued on 31 January this year provides for new courts. They will include one senior military officer nominated by the government, besides two civilian judicial officers constituting a three-member bench headed by a civilian judge. The courts will sit in cantonments or jail premises to ensure the security of accused, witnesses and the judiciary.1

A terrorist act is defined as follows, as amended by the 1999 Anti-Terrorism Ordinance: ‘6. Terrorist Act – A person is said to commit a terrorist act if he, (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of, or injury to, any person or persons, of the people; or or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or (b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or (c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or (d) commits an act of civil commotion as specified in section 7A.’

Among the amendments brought by the 1999 Anti-Terrorism Ordinance was the insertion of Section 7A providing for civil commotion. It reads: ‘7A. Creation of civil commotion – "Civil commotion" means creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching or lifting, damage to or destruction of state or private property, random firing to create panic, charging bhatta, acts of criminal trespass (illegal qabza), distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act (XLV of 1860).’

The adoption of these anti terrorism laws have, as a consequence, included a large number of criminal acts covered under the Pakistan Penal Code as terrorist offences.

Described as ‘necessary that appropriate administrative and judicial measures’ be adopted to fight ‘a spate of terrorist activities and commission of heinous offences in Pakistan’2 these anti-terrorism laws opened the door to grave violations of human rights including the right to life, the prohibition of torture, the right to liberty and security and the right to fair trial. Inter alia, they provide for the creation of anti terrorist courts and give wide powers of arrest and interrogation to the police and army.

Amnesty International has criticized the legislation in its report, ‘Legalizing the Impermissible: the new anti-terrorism law.’3 Some of the criticism is reported below, sometimes in Amnesty’s words.

 

 

It is important to note that the existing legal and judicial system is already equipped to deal with offences referred to in the act. The problem then seems to be a lack of implementation, not a lack of laws. However, in an attempt to hide this inefficiency, Pakistan adopted the anti-terrorist acts which provide speedy trial without necessary guarantees for the accused, unfair trials and license to kill, etc.

The right to shoot to kill – Under Section 5(2)(1): ‘...an officer of the police, armed forces and civil armed forces may: (i) after giving prior warning use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, and it shall be lawful for any such officer, or any superior officer, to fire, or order the firing upon any person or persons against whom he is authorized to use force in terms hereof...’

 

 

While one appreciates the constraints that law enforcement officials face in abnormal circumstances, the test of a country’s commitment to protection and promotion of human rights is reflected under such trying situations. The enactment of broad provisions empowering summary executions is not the way a modern civilized state ought to act. Rather the government should set strict limits to the circumstances in which firearms could be used to prevent arbitrary killing by the security forces.

The broad powers given to the police – and consequently, to the military and civil armed forces – contravene major international standards of human rights. Some of them are quoted below.

Principle 2 of the UN Principles on the Effective Prevention and Investigation of Extrajudicial, Arbitrary and Summary Executions states that: ‘In order to prevent extra-legal, arbitrary and summary executions, governments should ensure strict control, including a clear chain of command over all officials responsible for the apprehension, arrest, detention, custody and imprisonment as well as those officials authorized by law to use force and firearms.’

Moreover, Article 6.1 of the International Covenant on Civil and Political Rights states, ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be deprived of his life.’

 

 

Article 3 of the UN Code of Conduct for Law Enforcement Officials provides that, ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’ The commentary to Article 3 further provides that:

(a) This provision emphasizes the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for prevention of crime or in effecting or assisting in the lawful arrest of offenders and suspected offenders, no force going beyond that may be used.

(b) National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force, which is disproportionate to the legitimate objective to be achieved.

(c) The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should promptly be made to the competent authorities.

 

 

Indemnity for acts done in ‘good faith’: Section 39 of the act says: ‘No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under this act.’ This is tantamount to providing impunity to the security forces for abuses, including extrajudicial killings. To explicitly place any acts of police or other law enforcement personnel, including possibly random resort to lethal force, outside scrutiny and accountability may give law enforcement personnel the impression that they may commit such acts with impunity if only they can claim to have done them in good faith. It breaches a basic requirement of the rule of law, namely its equal and exceptionless application to everyone.

Principle 19 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions says: ‘In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.’

Further, Principles 9 and 18 respectively call for all such violations to be investigated and for the perpetrators to be brought to justice. Again, Principle 23 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Personnel says: ‘Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process.’ This pattern of impunity prevents law officials from restraining themselves from committing abuses and encourages a self-perpetuating cycle of violence.

Rigid time limits for police investigation: While Pakistani police is sadly famous for extensively using methods of torture on detainees as well as false testimony, the imposition of a seven-day maximum period for police investigation represents another encouragement to the development of such condemnable methods.

 

 

Setting up of special courts and independence of judiciary: The1999 Anti-Terrorism Amendment Act provides for establishment of Anti-terrorism court: ‘13. Establishment of Anti-terrorism Court – (i) For the purpose of providing for the speedy trial of the cases referred to in sub-section (ii) and sub-section (iii) of Section 39A, as well as of scheduled offences, the Federal Government, or if so directed by the Government, the Provincial Government may establish by notification one or more anti-terrorism courts in relation to each area.

(ii) Notwithstanding anything contained in sub-section (i), if, having regard to the exigencies of the situation prevailing in a Province, the government is of the opinion that it is expedient to establish in relation to an area, or in relation to two or more areas, in the province, an anti-terrorism court outside the said area or areas, for the trial of offences committed in the area, or areas, it may, by notification, establish in relation to such area or areas an anti-terrorism court at such place outside the said area, or areas as may be specified in the notification.

(iii) Where more anti-terrorism courts than one have been established in any area, the government in consultation with the Chief Justice of the High Court shall designate a judge of any such court to be an administrative judge and all cases triable under this act pertaining to the said area shall be filed before the said court and such judge may either try the cases himself, or assign any case, or cases, for trial to any other anti-terrorism court at any time prior to the framing of the charge. The cases shall be assigned to a court one case at a time: Provided that in order to ensure that the time of the court is not wasted if for some reason a given case cannot proceed more than one case can be assigned to it at any time or from time to time.

(iv) In respect of a case assigned to a court under sub-section (iii), all orders made or proceedings taken before the assignment shall be deemed to have been made or taken by the court to which the case has been assigned.’

 

 

The Law Commission of Pakistan in its report of August 1997 acknowledged that ‘the expeditious... disposal of cases and provision of inexpensive justice would certainly have an impact in arresting the spiral of violence and lawlessness in society.’

The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions noted in December 1996: ‘The Special Rapporteur is particularly concerned about the imposition of the death penalty by special jurisdictions. These jurisdictions are often set up as a response to acts of violence committed by armed opposition groups or in situations of civil unrest, in order to speed up proceedings leading to capital punishment. Such special courts often lack independence, since sometimes judges are accountable to the executive... Time limits, which are sometimes set for the conclusion of the different trial stages before such special jurisdictions, gravely affect defendants’ right to an adequate defence. The Special Rapporteur also expresses concern about limitations of the right to appeal in the context of special jurisdictions. This is particularly worrying as these special jurisdictions are generally established in situations where rampant human rights violations already exist.’4

The 1997 Anti-Terrorism Act also prevents people convicted and sentenced from using their right to appeal. Section 31 prohibits the appellate process in the judiciary. It says: ‘A judgment or order passed, or sentence awarded, by a special court, subject to the result of an appeal under this act shall be final and shall not be called in question in any court.’ This excludes the possibility of appealing to the regular high courts and the Supreme Court of Pakistan.

 

 

The right to be tried by an independent and competent tribunal is also compromised by the Anti-Terror Act. Under its Section 14, unqualified people may become judges. A person may be appointed by the federal government after consultation with the chief justice of the relevant provincial high court who: ‘(i) is or has been a sessions judge or an additional sessions judge; or; (ii) has exercised the powers of a district magistrate or an additional district magistrate and has successfully completed an advanced course in Shariah, Islamic law, conducted by the International University, Islamabad; or; (iii) has for a period of not less that ten years been an advocate... Explanation – The qualification of being an advocate for a period of not less that 10 years may be relaxed in the case of a suitable person who is a graduate from an Islamic university and has studied Islamic Shariah and fiqh as a major subject.’

The Pakistan Anti Terrorism (Amendment) Ordinance, 1999 amended the above section by stating the advocate must be a High Court advocate. But it does not change the fear that government may appoint any advocate that is pro-government.

On 31 January 2002, the Pakistan Government issued an ordinance for inclusion of military officers in panels of judges to try ‘terrorist’ offences. Moreover, under Section 10(b) of the Pakistan Anti-Terrorism (Amendment) Ordinance, 1999, ‘the judge may be removed from office prior to the expiry of the said period in consultation with the Chief Justice,’ raising serious questions about the independence of judiciary.

Article 14(1) of the ICCPR provides that, ‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.’

 

 

Confessions to police made admissible in court: Under the Qanun-e-Shahadat Order, 1984, a confession made before a police officer cannot be used in court as valid evidence against the accused. This provision is suspended in the act in section 26 which says: ‘The special court may, for admission of the confession in evidence, require the police officer to produce a video tape together with the devices used for recording the confession’.

Article 14(2) of the Constitution of Pakistan prohibits the use of torture, though only in the limited context of extraction of confessions: ‘No person shall be subjected to torture for the purpose of extracting evidence’.

International standards including the Universal Declaration of Human Rights and the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration against Torture) unconditionally prohibit torture and other forms of cruel, inhuman or degrading treatment or punishment. Article 12 of the Declaration against Torture states that, ‘Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.’

However, Pakistani law enforcement officials, to extract confessions from the accused, routinely use torture. Lending greater legal weight to confessions and putting pressure on police to speedily resolve crime may indirectly contribute to the continued, and perhaps increased use of torture.

 

 

The right to a fair hearing in the context of transfer of cases: Under Section 18 of the Pakistan Anti-Terrorism (Amendment) Ordinance, 1999; ‘(2) all cases, including cases before a court of appeals, which were pending under the repealed ordinance shall stand transferred to the anti-terrorism court having jurisdiction under the act and such court shall, (a) in cases which have been transferred from a trial court, continue the trial from the stage which the cases had reached; and (b) in cases which have been transferred from a court of appeals decide the same other basis of the evidence earlier recorded after hearing the parties.

(3) Any judgement given or sentence passed by a trial court or a court of appeals convened under Section 3 of the repealed ordinance, except cases in which sentence of death was passed and has been executed, shall have no effect and all such cases shall stand transferred to the anti-terrorism court having jurisdiction under the act for decision after hearing the parties on the basis of the evidence earlier recorded.

(4) In respect of a case transferred to a court by virtue of sub-section (2) or sub-section (3), the court shall not, by reason of the said transfer, be bound to recall and rehear any witness who have given evidence before the transfer and may act on the evidence already recorded by or produced before the court from which the case is so transferred.

(5) Nothing contained in subsection (4) shall affect the power of the court to recall any witness or rehear any evidence as is available under the law.’

Judges who may not have heard all the evidence if a case has been transferred will not be able to provide a fair trial in accordance with Article 10 of the Universal Declaration of Human Rights which lays down the right of every person to a fair trial.

The provision of the act regarding the transfer of cases also contains an inherent unfairness in that judges presiding over a transferred case have to decide the case partially on the basis of a written transcript of evidence, if available. One of the fundamental principles of the judicial system of Pakistan is that justice is secured by presentation, wherever possible, of oral evidence directly to the court.

 

 

The right to be tried in a public place without prejudice to the defendant: Section 15 of the 1997 Anti-Terrorism Act states, ‘The government may direct that for the trial of a particular case, the court shall sit at such place including the place of occurrence as it may specify.’ This is intended to expose the defendant to public expressions of outrage, anger or even violence for his deeds, to humiliate him and to deter others by the spectre of public exposure; it does not appear to serve the purpose of helping the judiciary establish the truth and do justice in a detached circumspect manner and in calm circumstances.

Principle 6 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment says: ‘No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstances whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.’ Holding the trial in a mosque may be degrading for the accused.

While the place of trial should not be such as to expose the defendant to public humiliation, at the same time the place of trial cannot be in a place inaccessible to the public, such as a jail. Article 10 of the Universal Declaration of Human Rights, states that everyone is entitled to a fair and public hearing. Holding the trials in camera may deny the guarantee for a fair trial.

 

 

The right to a full defence: Police are required to complete their investigation under the act within seven days. Once the police report is submitted and the special court takes cognizance of it, the court shall ‘proceed with the trial from day to day and shall decide the case within seven working days’. Under Sections 19(7) and (8) of the 1997 Anti-Terrorism Act the court may adjourn hearings only ‘if necessary in the interest of justice’ and only for two working days. Similarly, an appeal to the appellate tribunal has to be heard and decided within seven days.

However, given the efficiency of the police that is responsible for non-implementation of the existing laws, the police may fabricate their findings and the accused given little opportunity to rebut such fabricated allegations and may be convicted with the death penalty.

The UN Safeguards guaranteeing protection of the rights of those facing the death penalty in Safeguard 5 lays down: ‘Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights...’ One of the important principles contained in Article 14 of the International Covenant on Civil and Political Rights is contained in Section 3(b), according to which every accused shall be entitled ‘to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.’

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General Assembly Resolution 43/173 on 9 December 1988, lays down in Principle 18(2): ‘A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.’

Further, Principle 33 lays down the right of every defendant to make a complaint about torture or other forms of cruel, inhuman or degrading treatment or punishment which must be investigated. Article 12 of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that no statement made as a result of torture may be used as evidence against the person concerned or any other person. As Amnesty International states, ‘None of these requirements can conceivably be fulfilled in a trial lasting only seven days, with a maximum two days extension.’

 

 

The right to be presumed innocent: The act lays down that only special courts may grant bail to people tried for offences under the act but they may not release a defendant on bail ‘if there are reasonable grounds for believing that he has been guilty of the offence with which he has been charged’ and unless the prosecution has been given an opportunity to ‘show cause why he should not be released.’

This gives the prosecution the right to veto to deny bail. Article 11(1) of the Universal Declaration of Human Rights asserts: ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’

 

 

The right to appeal: Section 31 of the act reads: ‘A judgement or order passed, or sentence awarded, by a special court, subject to the result of an appeal under this act shall be final and shall not be called in question by any court.’

The possibility of the defendant to appeal to a court in the regular judicial system, either to the provincial high court or the Supreme Court of Pakistan is therefore excluded. People convicted and sentenced by the special courts are clearly disadvantaged in so far as their legal remedies are restricted: they have only one possibility of appeal, whereas people convicted by regular courts may also appeal to the Supreme Court. This provision violates the principle of equality before law laid down in the Constitution of Pakistan. It is one of the fundamental principles of international human rights law. Moreover, the right to appeal is restricted in so far as it is subject to severe time limitations. The defendant may not in seven days be able to present an adequate appeal.

In addition, defence and prosecution do not enjoy the same rights with respect to appeal and review. While the defendant has to appeal to the appellate tribunal within seven days after the sentence is announced, the state prosecution may file an appeal against an acquittal or sentence within 15 days of the court’s decision.

Moreover, the right to appeal of those facing the death penalty also appears to be seriously infringed under the act. Under the regular law of Pakistan, death sentences by lower courts are automatically referred to the provincial high court for confirmation, regardless of whether the prisoner appeals. If the death sentence is confirmed, the prisoner may then appeal to the Supreme Court but the Supreme Court may decide not to hear the case. Persons sentenced to death also have the possibility to appeal for commutation of their sentence by seeking clemency or pardon of the provincial or federal government or the President of Pakistan.5

The UN Safeguards guaranteeing protection of the rights of those facing the death penalty in Safeguard 7 says: ‘Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.’

The Special Rapporteur on extrajudicial, summary or arbitrary executions in December 1996 observed with respect to the appeal against death sentences: ‘States should provide in their national legislation a period of at least six months so as to allow a reasonable amount of time for the preparation of appeals to courts of higher jurisdiction and petitions for clemency before a death sentence is executed. Such a measure would prevent hasty executions while affording defendants the opportunity to exercise all their rights...’6

 

 

Death penalty: Under Section 7(1) of the 1999 Amended Anti-terrorism Act, for ‘terrorist acts’ resulting in death, courts have to mandatorily impose the death penalty. This does not give any discretion to the judiciary.

Section 22 of the 1997 Anti Terrorism Act, ‘The [federal] government may specify the manner, mode and place of execution of any sentence passed under this act, having regard to the deterrent effect which such execution is likely to have’ (Section 22).

 

 

Section 22 opens the possibility for public executions of the death penalty, which Prime Minister Nawaz Sharif had favoured during his first term in office and made part of the Special Court for Speedy Trial Act. Again, when the death penalty was extended to gang rape in March 1997, Nawaz Sharif announced that gang rape would come to an end if convicted rapists were hanged by the lamp post nearest the place of crime. On 13 August 1997, he said to foreign correspondents in Islamabad when the anti-terrorism bill was under discussion: ‘If such people [terrorists] are given the death penalty, that will certainly act as deterrent’.7

 

Endnotes:

1. Amnesty International, ‘Pakistan: new anti-terrorist courts breach fair trial norms’, News Service 22/2002. ASA 33/04/2002.

2. Interior Minister Chaudhry Shujaat Hussain, during the presentation of the 1997 Anti Terrorism Bill to the Houses of Parliament.

3. Amnesty International, ‘Legalizing the impermissible: the new anti-terrorism law’, 01/10/1997. ASA 33/034/1997.

4. E/CN.4/1997/60, p. 13.

5. On restricted possibilities of commutation of death sentences following the introduction of Islamic laws into the Pakistan Penal Code, see Pakistan: the death penalty, AI Index ASA 33/10/96.

6. E/CN.4/1997/60.

7. (18) The Supreme Court of Pakistan stayed public executions in late 1992 pending a decision on whether public executions are compatible with the dignity of man protected by Article 14 of the Constitution of Pakistan. In 1994 when the government of Benazir Bhutto had banned public executions as a matter of policy, the Supreme Court of Pakistan disposed off the question and said, ‘no further action by this court now appears to be necessary.’ See, Pakistan: The death penalty, AI Index: ASA 33/10/97.

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