CONCEPTUALLY, anti-terrorism laws usually include specific amendments allowing the state to bypass its own legislations when fighting terrorism-related crimes, on the grounds of necessity. Because of this suspension of regular procedure, critics often allege that anti-terrorism legislation endangers democracy by creating a state of exception that allows an authoritarian style of government.
Governments often state that they are necessary temporary measures that will go when the danger ends. The conflict, however, continues to persist as long as measures are necessary to combat terrorism. Thus, the means to counter terrorism may also include anti-democratic legislation.
Pakistan has undergone several experiments while devising anti-terror legislation. One of the earliest versions was the Suppression of Terrorist Activities Ordinance 1975 enacted by Z.A. Bhutto, which remained in force in Sindh and Punjab until its repeal in 1997. It remained the law in then NWFP and Balochistan until August 2001.
Another law giving wide-ranging powers to the army to curb violent activities was the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998, initially applied to Sindh. Since this law was passed in the aftermath of the army operations in Karachi, the ordinance granted broad judicial powers to the military. It also created the new crime of “civil commotion”.
On Jan 30, 1999, the Pakistan Armed Forces Ordinance of 1998 was extended to the entire country. It was also amended to enable absconders to be tried in absentia by any military court. Many constitutional petitions challenging the validity of the ordinance were filed, resulting in the landmark judgment Liaquat Hussain versus Federation of Pakistan on Feb 22, 1999. The Supreme Court declared the ordinance “unconstitutional, without legal authority, and with no legal effect”.
The Anti-Terrorism Act was signed on Aug 17, 1997. It created special anti-terrorism courts (ATCs) as well as an anti-terrorism appellate tribunal which was to be a court of appeal for verdicts handed down by ATCs. The 1997 act very broadly defined “terrorism” as murder, malicious insult of religious beliefs, the use of derogatory remarks with respect to holy personages, kidnapping and various statutes relating to “robbery and dacoity”.
It was clear from the outset that the wide-ranging definition of terrorism would become a widely abused device, and also cause crimes registered under the Anti-Terrorism Act to go up, thus increasing the workload of the ATCs. The Supreme Court later declared most of the provisions of the 1997 anti-terrorism act unconstitutional.
The Oct 24, 1998 Anti-Terrorism (Amendment) Ordinance attempted to respond to most of the Supreme Court’s objections.
Special ATCs remained in place but the special appellate tribunals envisaged in the act were disbanded. Restrictions were placed on the earlier act’s provisions regarding trial in absentia to accord with regular legal procedures.
On Aug 27, 1999, amendment to the act authorised ATCs for the entire country. Another two amendments in December that year extended the schedule of offences to include several other provisions of Pakistan’s criminal code. It was envisaged in the original act that investigations would be completed within one week, and ATC trials would not take longer than seven working days; this principle faded away.
Another amendment on Aug 15, 2001 further expanded the ambit of terrorism. The government was by now recognising that terrorist organisations were conspiring against the state. Special provisions were introduced giving powers to the government to proscribe an organisation if it had “reason to believe that the organisation is concerned with terrorism”.
In order to meet the demands of the growing cases of terrorism, the number of anti-terrorism courts was increased, and ATCs were also introduced in the then NWFP and Balochistan. On Jan 30, 2002, another amendment, the Anti- Terrorism (Amendment) Ordinance, 2002, was introduced, with the aim to speed up the judicial process. Yet another amendment, Anti-Terrorism (Second Amendment) Ordinance, 2002, gave police the power to detain anyone listed on the government’s ‘terrorism list’ for up to one year without filing specific criminal charges.
When the spectre of suicide bombers began to rear its head, further amendments to the ATA of 1997 were made in November 2004. The maximum jail term for supporters of militants was increased from 14 years to life imprisonment. Victims and their heirs obtained the right to appeal against the acquittal of the accused by an anti-terrorist court. Another amendment to the Anti-Terrorism Act authorised government officials to seize the passport of anyone charged under the law. The Anti-Terrorism (Second Amendment) Act on Jan 10, 2005 enhanced the minimum and maximum punishment for acts of terrorism. It also enhanced the jurisdiction of the ATCs so that cases of abduction and kidnapping for ransom, the use of explosives in places of worship and court premises could be exclusively tried by them.
In the aftermath of the Lal Masjid incident, the definition of terrorism was expanded by including attack on government premises, official installations, schools, hospitals and other public property through an amendment in 2009.
Drawing lessons from the Swat insurgency, any groups or organisations (not recognized by the law) that took the law into their own hands were also recognised as perpetrators of acts of terror. To stop the trend of changing the nom de guerre of an organisation, whence the same office-bearers make a new entity with a different name, the government also got the power to ban the new organisation which ‘sprang’ from the old one, to freeze its accounts and to forbid its office-bearers from obtaining a passport and travelling abroad..
Preventive detention was also introduced by which a person could be kept in detention for 90 days without this being challenged in court. To keep the accused in custody the right of bail was withdrawn.
Thus, the history of counter-terrorism legislation is a long one, but a lot remains to be done. The high acquittal rate of ATCs also gets a bad press. In order to rectify such lacunae, a bill was proposed in 2010. This bill has not yet been passed, even though the National Assembly’s approval for the Fair Trial Bill is a step in the right direction. Anti-terrorism legislation may see more changes before the desired results are obtained.
The writer is a security analyst.