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THE ANTI-TERRORISM (AMENDMENT) ACT, 2013:

Nationalizing the International Law on Counter Terrorism Financing The debate that the recent wave of terrorism is a byproduct of international politics is not new in Pakistan; though many tend to disagree with this point of view.

If the legislation of a country is any measure, the recent Anti-Terrorism (Amendment) Act, 2013 (ATA) and Anti-Terrorism (second amendment) Bill 2013, passed by the Senate on 5th and 14th March 2013 respectively, testify that the legislation is an outcome of succumbing to international pressure, and not of indigenous and domestic circumstances. The ‘internationalized’ aspect of the new amendments to Anti-terrorism Law shows that legislature and executive in Pakistan are more responsive to international pressure than to local needs and national aspirations.

A report issued by Pakistan Institute of Legislative Development and Transparency (PILDAT), on this issue, suggests that the ‘Financial Action Task Force’ (FATF), an intergovernmental organization established in 1989 and tasked, inter alia, to develop international standards in form of its recommendations to safeguard international financial system, repeatedly urged Pakistan to amend its anti-terrorism laws to tighten the asset seizure and counterterrorism regimes. Consequently, a draft of twenty-five amendments to ATA was proposed by Interior Minister Rehman Malik in 2010. The bill was sent to the Senate Standing Committee on Interior on July 27, 2010. The bill remained pending with the Committee for two years after which it was reportedly withdrawn in 2012. In the meanwhile, in October, 2011, FATF pressed upon the government to pass the law by February, 2012. However, Pakistan missed the deadline and resultantly, was blacklisted. The recent ATA amendments are a fruition of the government’s earlier commitments at international level. Given this background and noting the ‘external’ element in the legisla tion, it is now appropriate to outline some characteristic points of the new amendments.

In present form, there are, in all, twelve amendments in the Act. For conceptual clarity, these amendments may be divided into two broad categories:
A.    Definitional Amendments
B.    Counter-Terrorism Financing (CTF) Amend ments 
A.    Definitional Amendments:
In Common Law countries, legislations are drafted to express the will of the masses through the legislature. The will is expressed in legal jargon and with the help of drafting techniques. One such technique is to come up with a definitional clause. The definitional clause generally addresses the issues of capturing the abstract ideas of parliamentarians in Black Letter Law form. In ATA 1997, Section 2 deals with definitions, while Section 6 explains, at great length, the terrorism.

The recent ATA amendments are a fruition of the government’s earlier commitments at international level.
The ATA (Amendment) Act 2013 amends both Sections 2 and 6. It amends Section 2 to redefine the concepts of ‘money’ and ‘property’ with the effect of widening the connotations and resulting in international applicability of the ATA. It also amends Section 6 to include application of all the offences defined in eight international conventions (outlined in Fifth Schedule to ATA 1997 read with its Section 34) relating to Unlawful Seizure of Aircraft, International Persons, Diplomatic Agents, Taking of Hostages, Violence at Airports, Safety of Maritime Navigation, Safety of Fined Platforms on Continental Shelf and Terrorist Bombings. The importation and nationalization of international law into ATA is the characteristic of this set of amendments. An important point worth noting is that the newly-added Fifth Schedule has a clause which enables the Federal Government to specify through ‘notification’ any other convention or international treaty to be included for application in Pakistan through ATA law. The delegation of power for incorporating the international law to the executive must be minutely examined as the domain is predominantly reserved for the legislature.

A.    Counter Terrorism Financing Amendments:
Counter Terrorism Financing (CTF) Regime of Pakistan’s terrorism law is embedded in Section 11 and twenty-four of its clauses (from 11A to 11X). The new amendments introduce minor changes in Sections 11A, E, F, H, P, R, S, T. Section 11O attempts to simplify and empower both provincial and federal governments to effect seizure, freezing and detention of person and property involved in terrorism.

In the previous form, only the provincial government had the power to affect seizure of property. The seizure and freezing of accounts is a tricky subject in Pakistan. Interestingly, the new amendments make no references towards Anti-Money Laundering Act, 2010, and by not addressing the extant legislation on the point, two regimes have become operational. One is under the AML Act, 2010 and the other under the new amendments. The primary law enforcement agency (i.e. Police), as usual, has been kept out of business and no trust has been reposed in it. The exclusionary approach towards police and a multiagency environment for CTF is counterproductive: as in every case, the fragmentation of powers of counterterrorism agencies results in benefit to criminals who exploit the legal and administrative lacunae in courts.

Charles H. Kennedy, in his article, ‘The Creation and Development of Pakistan’s Anti-Terrorism Regime, 1997-2002, noted:
‘If the purposes of establishing an anti-terrorism regime are to lessen terrorism, punish terrorists, improve the efficiency of the legal system, and dispense speedy justice, Pakistan’s anti-terrorism regime has been a complete failure. Conversely, if the purposes of an anti-terrorism regime are to improve one’s position relative to one’s domestic political opponents, or to improve public relations, or to rehabilitate one’s standing with the international community, then Pakistan’s antiterrorism regime has generally been a success.’

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