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Justice denied

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FOR the lack of as little as Rs30,000, an accused can become a convicted terrorist. Like many others, Muhammad Azam was a victim of the same menace: one greedy station house officer looking to make some extra cash.

Merely a boy at the time of his conviction, Azam was booked for an accidental death that happened during a row with his friend’s debtor. He was charged under the Anti-Terrorism Act along with Section 302 of the Pakistan Penal Code. This guaranteed him a harsher sentence, with very little safeguard. The case was called everything, except what it really was: a sheer misuse of the ATA. He was tried in an antiterrorism court because his family could not pay the bribe, and he was sentenced to death at the age of 17. Twenty years behind bars, he has spent more time in prison than out.

Two years after his death sentence was pronounced, the government of Pakistan enacted the Juvenile Justice System Ordinance, prohibiting the death penalty for juvenile offenders. Shortly after that, in 2001, a presidential notification granted all juveniles who had been sentenced to death prior to the JJSO automatic remission of their sentences on the basis of an age determination inquiry. For Azam, his death sentence has remained — despite being prohibited under the JJSO, and despite the fact that the victim’s family has forgiven him. This is due to the problematic ATA, which does not allow for compromise. It seems as if the system has only two modes of operation: slumber and brutality.

Misuse of the ATA artificially inflates the number of terrorism cases.

The overstretched breadth of the ATA makes it dangerously simple to turn a blind eye to the distinction between an ordinary criminal and a militant — or for that matter, an adult and a minor. The misuse of the ATA artificially inflates the number of terrorism cases in the country by including ordinary criminal offences.

A report by Justice Project Pakistan, Terror on Death Row, in December 2014 discovered that more than 80pc of prisoners tried in ATCs were not ‘terrorists’ as the term is commonly understood. This overburdens police, prosecution services and courts, resulting in delays in the administration of ‘real’ cases of terrorism. More than 17,000 cases were still pending under the ATA in July 2014. By July 2017, more than 5,000 cases were pending in around 50 ATCs in Sindh alone.

Pakistan’s tryst with FATF will not make the backlog any easier to deal with. To avoid the much-dreaded black list, the state will have to investigate the financing of all suspected terrorism cases. If this comes to pass, law enforcement will have exceptional difficulties investigating the financing of all cases under the ATA, making our compliance with FATF obligations even more cumbersome. Here is where the courts can intervene.

When the seven-judge Supreme Court bench headed by the chief justice expressed its concerns regarding the ATA in a hearing last Tuesday, there seemed to be some hope for Azam — that he may not meet the same fate as Zafar Iqbal who was executed for killing his father over inheritance, or Zulfikar Ali who was hanged under the ATA for fatally shooting two robbers in self-defence, or many others among the 77 prisoners who have been hanged under the ATA since 2014.

Because of the lack of procedural safeguards in the ATA, the convictions for ordinary criminals are very high. It provides law-enforcement agencies, including police, with enhanced powers and extended discretion that pose a direct threat to safeguards that provide protection from torture enshrined under the Constitution and international human rights conventions. This, in many cases, becomes a fundamental element that aids in coercing the alleged criminal into confessing guilt in a crime he may not have committed at all.

In 2017, a three-member Supreme Court bench had cautioned the lower courts to keep ordinary crimes from being pushed into the murky pool of terrorism-related cases. The apex court now has a unique opportunity to declare the problematic and overly broad Section 6 of the ATA ultra vires and issue directions for a more precise and unambiguous definition to be enacted by parliament.

In an address to law graduates, Chief Justice Asif Saeed Khosa recently quoted Lord Denning, saying that knowledge of math, history and literature is necessary to becoming good lawyers. Lord Denning was, indeed, a man after the spirit of the law, rather than the letter of it. Elsewhere, he has been quoted as saying that there are things in life more worthwhile than money. A truism, perhaps, but if one was to ask Muhammad Azam, he would surely put his life and freedom down as two of those things.

Sarah Belal is executive director of Justice Project Pakistan.

Muhammad Oves Anwar serves as director of the Conflict Law Centre at RSIL, Islamabad.

Twitter: @SarahBelal

Published in Dawn, April 7th, 2019