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Wrongs versus Rights

Pakistan on 13 May 2014
Location : Pakistan | Source : Dawn. Image Source: Dawn

In recent months, the government has made it routine to promulgate anti-terrorism ordinances and amendments in the law which trample on universally accepted standards of human rights. The latest step in this stampede is the Protection of Pakistan Ordinance (Amendment), 2014, which builds on the toxic legacy of the Protection of Pakistan Ordinance (PPO), 2013, the Actions (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. Secondarily, 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. Although there is no evidence to suggest that more and harsher laws can automatically counter terrorism, 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 “protection against waging of war against Pakistan” as well as for a 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 mandatory under international human rights law, against arbitrary actions by law-enforcement agencies. First and foremost, the PPO 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 members of armed forces in the process of investigation. Coupled with some amendments to the ATA, the ordinance also grants powers to law-enforcement officials to “shoot at sight”. Amendment to the ATA’s section 21-H departs from the time-tested principle of not admitting confession before the police as legally valid evidence. It, thereby, creates the possibility of confessions extracted by the police through torture in anti-terrorism cases becoming 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 the democratic and rights-based culture in the country.

Najam U Din, a legal researcher associated with the Human Rights Commission of Pakistan, has pointed out in his 2006 study, titled Terrorist Unless Proven Otherwise, that all anti-terrorism laws introduced in Pakistan since 1974 have encroached 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 the ATA lacks basic legal and judicial safeguards, such as due process in court proceedings and adequate mechanisms to supervise trial courts. Even after adopting such legal and judicial shortcuts, however, the act has failed to achieve its stated goal of bringing perpetrators of terrorism to speedy justice.

The International Commission of Jurists’ Eminent Jurists Panel on Terrorism, Counterterrorism and Human Rights visited Pakistan in March 2007 and made similarly important observations. The panel reported that a culture of secrecy had become the 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 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 that 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 the extraordinary post-9/11 circumstances that they face. And while harsh laws that seriously compromise human rights standards continue to be promulgated, there is no sign that they are helpful in curbing terrorism — in Pakistan or elsewhere.

In legal discourse on such laws, there is a lot of emphasis on raising conviction rates in cases of terrorism. It is, however, open to question if such an emphasis is realistic vis-à-vis the Pakistani variety of terrorism, which relies heavily on suicide bombing. There also exists no empirical study to suggest that a higher conviction rate necessarily proves to be an effective deterrent against acts of terrorism. Even if higher conviction is an effective deterrent, a state’s ability to raise the conviction rate beyond a certain point must raise questions about its investigation and prosecution processes. This, however, barely figures in the dominant legal discourse on the issue. Those who do not directly refer to improved conviction rates leading to a decline in terrorism seem to imply so, by arguing in favour of limiting human rights and granting greater power and say to the national security establishment – that is, the armed forces – in investigating terrorism cases.

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 rates to a satisfactory level. Of the 559 cases heard by anti-terrorism courts in Punjab in 2012, the accused were convicted in just 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 per cent 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 the 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, the lack of harsh laws is not the reason for failure to raise conviction rates in terrorism cases and, consequently, curb terrorism. Yet, emphasis on the need for more stringent laws continues to exist — as expressed in several statements issued from the Prime Minister’s Office in the last one year. One reason for the existence of such an emphasis is the generally poor level of legal discourse on the issue. Consider, for example, what Ali Zafar, a Supreme Court lawyer, writes in a recent op-ed. 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 — for example, the United Kingdom, 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 UK has stringent anti-terrorism legislation, which it went ahead with despite criticism from human-rights groups. There are, indeed, people in the British establishment who want such laws to be 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. Indefinite detention of suspected persons without due process and searches without permission or knowledge continue to take place in the US. Australia not only allows the police to detain suspects for up to two weeks without charge, it also has a “shoot to kill” clause in its anti-terrorism law.

India’s Prevention of Terrorism Act (POTA), 2002 was unleashed as a counter-attack to the bombing of the Indian Parliament in 2001. Terrorism under POTA was made into what lawyer Vrinda Grover called a “catch-all category for inclusion of any and all actions”. It was left entirely to the police’s discretion to decide what constituted a terrorist act and who could be deemed responsible for it. Suspects could be detained for up to 180 days without the filing of a charge sheet against them; identities of the witnesses could be withheld by law-enforcement agencies and confessions, possibly made under duress, were declared admissible in courts.

It may also sound eerily familiar to a Pakistani audience that Article 22(3) of India’s Constitution explicitly states that “enemy aliens”, though undefined, are outside the purview of protection provided by that article — as are cases of preventive detention. When POTA was repealed in 2004 and replaced with the Unlawful Activities (Prevention) Act (UAPA), 2004, many draconian provisions – such as preventive detention for 180 days – resurfaced.

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.

Ahmer Bilal Soofi, 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.”

Soofi is clearly arguing that once the state even accuses someone of the offence of waging war against itself – and the 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, Soofi indirectly suggests curbing the freedom of the press, seeking the incorporation in the national security policy of a questionable 2012 judgment by the Balochistan High Court which could have serious implications for the freedom of the press.

Colm Campbell, who heads the Institute of Transitional Justice at Ulster University, explains the rationale behind this 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 Campbell, 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 Campbell 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 now faces. 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”. 
Siddiqi 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 [emphasis added] 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 the 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 — and many lawyers continue to strengthen that belief by not questioning it. 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 Actions (in Aid of Civil Power) Regulations, 2011, applicable only in the 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 these regulations after being whisked away from outside the Adiala Jail in Rawalpindi. 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. A case in point is 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. Since the enactment of the law – which is decidedly stringent and in violation of many fundamental rights – 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 causes 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 counterterrorism legislation. According to her, one consequence of the “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.

Ensuring security during terrorism is a complicated process but the slow machine of the state must not be allowed to use unexamined and isolated lies to ignore usable truths. Better trained police, well-versed prosecutors, collection and analysis of forensic evidence and informed intelligence services can create a narrow exit through which Pakistan can carve a path to a peaceful future.

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