Just as Pakistan struggles with the existential problem of rooting out terrorism, India too wrestled with similar demons after the 2002 attack on the parliament building in New Delhi. The government of the time, the National Democratic Alliance (NDA) introduced the Prevention of Terrorism Act 2002 (POTA) to strengthen anti terrorism operations, which granted special powers to investigation agencies. Dawn spoke to criminal law expert Ahsanuddin Sheikh and asked him how India used POTA to curtail civil liberties and what effect the proposed 22nd amendment could have on the state of civil liberties in Pakistan.

Q. Even in India, there was severe opposition to the promulgation of POTA. How well did that work and how do you think the 22nd amendment will fare?

A: The POTA was introduced in the wake of series of terrorist attacks on Indian soil. It was a ‘sunset’ or time-specific law and was introduced to counter alleged cross-border terrorism from Pakistan. POTA was criticised for being against the fundamental rights enshrined in the Indian constitution. The ruling coalition of the time failed to get it approved from the upper house and managed to pass it in a joint session of parliament. Under POTA, investigators were given vast powers. The legislation provided special protection to witnesses and judges.

After the terrorist attack on the Army Public School in Peshawar, the government could have taken actions to curb terrorism without establishing military courts. The proposed amendment will change the basic structure of the constitution. The legislation inserts some sections of the Anti Terrorism Act and the Protection of Pakistan Act in Schedule One of the Constitution and to give investigators unprecedented powers. This amendment is against Article 8 of the Constitution, which protects fundamental rights.

Q. What could be an alternative to military courts?

A. Lawmakers could propose amendments to the Anti Terrorism Act and the Protection of Pakistan Act to ensure the protection of witnesses, judges and prosecutors.

In 1997, the initial draft of the Anti Terrorism Act also included the provision of admissibility of witness testimony recorded before senior investigating officers but parliament excluded the clause.

In most cases, suspected terrorists are able to intimidate witnesses so they change their testimony while recording it in front of a judge, which benefits the accused persons.

Q. What legal challenges may hinder the trial of terrorists before military courts?

A. The proposed legislation would empower army officials to investigate terrorism-related offences.

The army officer may not be well-versed with the law and it is quite possible that the evidence he would collect against the accused may not be admissible under the Evidence Act.

On the basis of such evidence, would it be possible for the military court to convict the accused persons? In case the military court convicts an accused on half-baked evidence, the appellate forum, which may be the high court or the Supreme Court, would not uphold such decisions and that would trigger another controversy, where those convicted by military courts may obtain acquittals from civilian courts.

—Text by Malik Asad

Published in Dawn, January 4th, 2015

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