THE prime minister has taken some concrete legal steps to demonstrate his government’s commitments to counter terrorism. These are in the form of two recent ordinances; one to amend the Anti-Terrorism Act (ATA), the other the Protection of Pakistan Ordinance 2013.

The said ordinances were the outcome of the deliberations of a committee headed by Zahid Hamid that was especially tasked by the prime minister to recommend specific counterterrorism legislation in the context of the Karachi operations. The committee made several other long-term recommendations including one relating to a total revision and re-enactment of the existing ATA.

In the next one or two months, the government will have to lay these ordinances before the National Assembly for enactment as a permanent statute. In my view, the debate in parliament will not remain confined to these two ordinances. Since there is an overlap of some of the legal elements of these two ordinances with the provisions of the ATA, parliamentarians are bound to discuss the ATA for which the treasury benches should be prepared in advance.

The ATA was enacted in 1997 primarily to punish offenders perpetrating sectarian violence. However, later the law lost its focus and began to be used for the trial of routine offences that should have been tried under ordinary courts set up under the Criminal Procedure Code.

The superior courts through various judgements tried in vain to bring about some clarity regarding the original spirit of the ATA but the effort ended up generating even more confusion. Although the spirit of the ATA was restricted to high-profile acts of terrorism the law’s generalised language allowed openings to an ordinary station house officer or investigating officer to indict criminals committing ordinary offences under the ATA. This was the cause of corruption at the level of investigation.

Complainants in ordinary crime cases started bribing police officers to include ATA offences in FIRs, leading to a large number of prosecutions under the ATA that burdened the anti-terrorism courts beyond their capacity. The special fast legal lane under the ATA — as originally conceived — was choked. In that process, prosecutions of some high-profile cases also suffered. All this happened because of the poorly and loosely drafted language.

The ATA was amended several times and what we now see is a non-harmonious patchwork of amendments that have made the interpretation and implementation of the ATA difficult by those who use it as prosecutors or judges, and the beneficiary of this ambiguity is invariably the accused. Several of these points have been summed up in a recent study carried out by a young legal team of experts of the Research Society of International Law.

The context of terrorism has changed from sectarian-based as it was in 1997. In 2013, each act of terrorism is in effect waging war on the state itself. The ATA is so outdated that it is shocking that the offence under Section 121 of the Pakistan Penal Code, that is waging war on the state, is missing from its Schedule as of now. During my tenure as federal law minister I recall moving a summary for amending the Schedule at least and I hope this is being followed up by the present officials.

I see in the incoming debates a great opportunity to implement the Zahid Hamid recommendations of revising the ATA and enacting it afresh by tabling a new draft which includes the same elements of the recently issued ordinances, and revising it comprehensively while keeping in view the various views and pronouncements of the superior courts — in particular those of Justice Asif Saeed Khan Khosa.

The proposed revised ATA should also contain provisions to regulate the conduct of the police when they are enforcing order or during an event while using force. Likewise when armed forces are called in aid of civil power the use of force needs to be properly regulated under the law which is not the case right now.

In 2010, Pakistan ratified The International Convention on Civil and Political Rights and the Convention against Torture — two major instruments of human rights. Since human rights are threatened the most during law enforcement operations and conflict, there is a need for provisions in the new ATA that would implement human rights standards while conducting the actions. It is nobody’s view that the existing ATA is an excellent piece of legislation. The judges have been privately grumbling about it. Investigators and prosecutors have difficulty capturing its central spirit and during international conferences foreign experts are least complimentary about it. There are two clear advantages one can see while making a case for revising the ATA. First, politically it reaffirms the commitment of the government of Mian Nawaz Sharif to take concrete steps to enact legislation; and secondly; from a legal point of view it is the critical legal instrument that defines the capacity of the state to punish those who attack it and protect those who may be falsely implicated.

Military or police operations are a very small part of the entire spectrum of the state’s effort to neutralise the terrorism threat. It is the criminal justice system and its effectiveness that heavily relies on legislation like the ATA that will eventually test the determination of the PML-N government to fight terrorism effectively within the rule of law paradigm.

The debate in the National Assembly on the two ordinances in the next month or so is going to open up options for the government and it should prepare for it now — perhaps by keeping handy the draft of a revised ATA.

The writer is a former caretaker minister for law, justice & parliamentary affairs.

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