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Curtailing due process

October 10, 2013

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EVEN after Prime Minister Nawaz Sharif’s signal for the speedy enactment of the amendments proposed in the Anti-Terrorism Act of 1997, it should be possible to ponder the consequences of nibbling away at the due process of law.

Accounts of the prime minister’s meeting last Thursday with the team responsible for giving the final touches to the Anti-Terrorism (Third Amendment) Bill, 2013, are not clear about his advice. The statement attributed to him, that the revised law should ensure a level playing field for both the prosecution and the defence, can only be welcomed. This is indeed the basic criterion each penal statute must necessarily satisfy. But references to plugging the loopholes in the law gave the impression that only the prosecution’s concerns were being addressed.

The high-level meeting had probably been convened, and this after the federal cabinet had approved the proposed changes, to take into account the heavy criticism the amendments attracted. It is doubtful if the misgivings expressed in the media by experts and laymen both have been satisfactorily removed because at issue are citizens’ most basic rights.

For instance, the move to increase a suspect’s period of preventive detention from 30 days — which is bad enough — to 90 days without judicial sanction hits the fundamental right to liberty.

Likewise, the proposal to allow law-enforcing agencies the power to open fire on anyone presumed to be a terrorist, or expected to commit a terrorist act, without being fired upon should be treated as an attack on the crucial right to life.

Not much has been said about the proposal to decide cases on the basis of electronically generated evidence alone or the measures proposed ostensibly to protect judges and witnesses. It can be argued that electronically gathered evidence can be tampered with, and the country may not have the capacity to ensure the authenticity of information and messages. Similarly, holding trials in jails or via video link, which may be unavoidable in rare cases, cannot be accepted as a rule as they negate the right to open and public trial.

The issues raised by the latest crop of amendments have figured prominently in public debate on anti-terrorism laws and speedy-trial courts for more than 20 years, and more if we go back to the Rowlatt Act of 1919 or the Punjab Murderous Outrages Act of 1867, as revisited in 1956.

The search for an effective response to terrorism has led us, over the last two decades, to the establishment of military courts to try civilians, a move the judiciary had to quash. At one stage mixed judicial-military tribunals too were proposed. And the expression, “use of force to the extent of causing death”, has frequently been in and out of laws. The point is that whenever more effective ways to deal with terrorism are discussed the agenda is limited to curtailing due process; the other requirements of a proper anti-terrorism regime are largely ignored.

After the 9/11 disaster the example of advanced states’ haste in devising laws and procedures derogatory to fundamental rights and guarantees of fair trial are often quoted as justification for similar deviations from civilised law in less developed countries. It is conveniently forgotten that countries such as Pakistan do not possess trained investigators and prosecutors of the calibre the United States or Britain should have. Further, if special anti-terrorism measures can be misused in these advanced countries, the risks of their abuse in Pakistan are much greater.

The force behind the new amendments was identified by the Minister for Law, Science and Technology at last week’s meeting. He is reported to have said that the security establishment had strongly recommended the clause that allows its functionaries to fire at their quarries “because they were engaged in a battle with hardened, trigger-happy criminals in Karachi’’.

Such arguments have been heard before. The ‘security establishment’ has always blamed courts for letting off the criminals it captures alive and the administration, especially the politicians, for protecting lawbreakers. The courts have consistently rebutted the charge against them by saying that they cannot convict anyone or deny him bail without adequate evidence. The complaint against administration and political authorities cannot be dismissed altogether because cases have come to light when detainees have benefited from the prosecution’s reluctance to reveal all facts in the courts. In any case, the shortcomings of courts and political authorities cannot justify granting freedom to trigger-happy gendarmes to have duels with trigger-happy criminals. That is a prescription for anarchy.

It is thus important that lawmakers should not listen only to the ‘security establishment’. Practical experience has shown quite a few serious flaws in the existing legal framework. A large number of murder cases go to anti-terrorism courts while they should be heard by sessions judges. The arbitrary marking of cases to the anti-terrorism courts leads to discrimination, corruption and the miscarriage of justice. Attempts to have cases decided in 14 or 30 days have mostly failed. One of the main justifications for the anti-terrorism law was the need to eliminate sectarian strife and hate-preaching but these crimes have never been seriously tackled.

The need to update the anti-terrorism law cannot be denied but the effort should not be confined to encroaching on the requisites of fair trial. Some attention must also be paid to ending inefficiency and corruption in the investigating and prosecution services. Besides, the teams formed to work out reform ideas should include sociologists, criminologists, psychologists, and public representatives besides experts on the state’s payroll. And if it is impossible to tackle terrorism without compromising citizens’ fundamental rights, the safeguards against abuse must be spelt out fairly and clearly and the deviations from due process must be for a specified — and brief — period only.