The net result of the plethora of amendments to ATA 1997 is that they have taken away the ‘specialty’ of the special law and have relegated it to the level of general penal law of the country.
On 6th February, 2014, two bills were introduced in the National Assembly of Pakistan to make amendments to the Anti-Terrorism Act, 1997 (ATA 1997). The two bills introduced two sets of amendments which were styled as the Anti-Terrorism (Amendment) Act, 2014 and the Anti-Terrorism (Second Amendment) Act, 2014 respectively. The first bill was passed by the National Assembly on 4th June, 2014. With the Karachi Airport attack of 8th June, the momentum is all set for the amendments to be passed in toto by the Senate. The gist of amendments reflects on the mindset of the government and the legislature, and merits examination. The following piece presents a snapshot of the set of amendments with some comments.
THE ANTI-TERRORISM (AMENDMENT) ACT, 2014
The intention behind this set of amendments can be discerned from the Statement of Objects and Reasons as appended to the Act. The Statement recognizes the need for ‘more legislative measures’ to the anti-terrorism law, and in doing so, it aims at enhancing ‘effectiveness’ of ‘law-enforcing agencies’ in dealing with ‘heinous crimes’. It proffers ‘powers’ of investigation to ‘Rangers’. The law amends various provisions of ATA 1997. The conceptual changes are:
- The right to private defence (erroneously called self-defence) of the law-enforcement agencies (LEAs) has further been narrowed down by linking it to proportionality and necessity, and by making it contingent upon ‘firing’. The right to private defence is granted to everyone in Pakistan’s general penal code called ‘Pakistan Penal Code of 1860’ in its exceptions part (Sections 96 to 104). Section 5 of the ATA 1997 has been specifically extended to police and armed forces, and the new amendment has increased the caveats to exercise of right to private defence and to the use of force. In present form, the initiative of already-reticent LEAs to take proactive and preventive measures has been further curtailed.
- All cases of death and grievous injury will now be subjected to inquiry by an inquiry committee constituted by the head of the law-enforcement agency. In the usual excessive use of force cases by police, the judicial fora examine the legality of the actions using developed jurisprudence on the point. Checking executive action by executive committees may not add any perfection to the law and is likely to add to the complexities of legal proceedings.
- The power of detention for a period of three months has been introduced by the law. The queer part is that the detention power is not limited to terrorists only but is extendable to ‘target killing, kidnapping for ransom, extortion and bhatta’ cases.
- The level of Joint Investigation Teams (JITs) constituted under Section 19 of the ATA 1997 has been further raised by making an SP rank officer member of such teams and authorizing him to sign a JIT report for submission to a court. The amendment is procedural and has been mostly cosmetic as such provisions are often not followed given the resources and ground realities. Similar amendments were made to Code of Criminal Procedure where SP rank officers were designated to investigate blasphemy cases, but that did not work.
- Progressive procedural amendments have also been made which authorize ATA courts to use screens to shield witnesses, judges and prosecutors from public view. Likewise, the new amendment allows judges to use video links in trials.
- A new Section 27-B has been added which authorizes judges to base their convictions on forensic and electronic evidence.
- Transfer of ATA cases throughout Pakistan has been made easy through a new amendment, of course, subject to concurrence by the Chief Justice of the concerned High Court.
THE ANTI-TERRORISM (SECOND AMENDMENT) ACT, 2014
The Financial Action Task Force (FATF), an international organization articulating global standards about anti-money laundering (AML) and counter-financing of terrorism (CFT), has placed Pakistan as high risk and non-cooperation jurisdiction. The second set of amendments relates to ‘shortcomings’ in ATA 1997 as per the Statement of Objects and Reasons of the Act. The amending legislation has introduced changes that redefine some definitions. Besides, its Section 11 OO confers powers on investigation agencies to access information about proscribed organizations or persons after obtaining permission from the Federal Government. The onus of permission of Federal Government is not very palpable as more often than not the investigation is carried out by provincial agency of police, which do not get symmetrical facilitation for the enforcement of the law. The state of law, as far as AML and CFT are concerned, is not ideal as multiple legal regimes and agencies under different laws tend to give benefit, instead of tightening the noose, to the accused who somehow find legal lacunae in the maze of rules.
Sequential introduction of the two legislations have highlighted important points of the proposed changes to ATA 1997. The general appraisal of the legislations is that they are no more different from the earlier amendments that have been introduced since 1997. The thrust of the amendments has never been to the intrinsic and internal demand of the agencies involved in active investigation and prosecution. The net result of the plethora of amendments to ATA 1997 is that they have taken away the ‘specialty’ of the special law and have relegated it to the level of general penal law of the country. The expansive nature of definition of terrorism coupled with inclusion of more and more offences to the docket of anti-terrorism courts has resulted in offering an unfocused and generic law instead of a focused, targeted and special law. There is no gainsaying the fact that without strengthening the primary law-enforcement efforts and penal law, the special law and investigations are not likely to bring about the desired results. At the moment, the state of criminal justice system in Pakistan is very fragile and with every passing day, the sense of insecurity is multiplying. Maintaining law and order should now be treated by the government as the most primary development expenditure; unfortunately, the expenditure on defence is read into law and order, whereas, defence has secondary role in the realm of law and order. The primary agents for maintaining law and order are police, prosecution and lower courts, which never get the due share in planning and development expenditure.