BANNING the TLP under the Anti-Terrorism Act (ATA), 1997, raises questions. Is proscription — a counterterrorism tool to challenge the legitimacy and fundraising capabilities of extremist groups — viable? Is there a link between proscription and reduction in terrorist attacks? What are the appeal and review procedures?
Even before 9/11, proscription has been pivotal to state ambition in times of conflict, though its use has been more symbolic than substantive. The Act of Proscription, 1746, barred people in Scotland from owning weapons and wearing kilts. In 1970, Canada passed the War Measures Act and declared the separatist Front de Liberation du Quebec unlawful. Post 9/11 has seen proscription pick up pace as states ban militant groups in the global fight against terrorism.
It is a pre-emptive measure to deter para-militarism, prosecute would-be terrorists and confiscate groups’ assets. Since it curtails freedom of association and speech, proscription has drawn the attention of the media, judiciary and human rights groups. It violates the principle of nulla poena ie people should be punished for what they have done, not for who or what they are. Voices are getting louder for making parliamentary scrutiny more credible to guard against arbitrary proscription.
Proscription is a sign of rejection of militant groups by governments and an attempt to deprive extremists of publicity. In some cases, this hasn’t worked — for the IRA, it was a source of greater publicity. Authoritarian use of powers by states have also been criticised — Australian judge Kitto said this about proscription powers: “You cannot have punishment that is preventive.”
Proscription must go beyond naming and shaming.
Under Section 11B of the ATA, Pakistan can ban a group on reasonable grounds including information received from credible sources. Section 11C provides the right of review; a banned group may file an application within 30 days of such an order and the centre shall decide the matter within 90 days. In case of refusal, an appeal may be filed in a high court within 30 days. Under Section 11E, the government shall seal offices, seize literature and prohibit the printing or dissemination of press statements and conferences of a banned group. Upon proscription, its office-bearers, activists and members shall not be issued passports and arms licences, nor provided loans or credit cards by banks. The group shall submit its income and expenditure details and disclose all funding sources.
Since 2001, Pakistan has banned 79 groups including 27 sectarian and 19 sub-nationalist ethnic groups. But many groups resurface with new names. Ansar al-Islam, an Iraq-based militant group, had 13 alternative names; in Pakistan 10 groups re-emerged with 25 different names (they were later proscribed).
Detection and surveillance of activists need improved capacity, trained manpower, financial resources and well-defined coordination among agencies. Few states prescribe a specific duration for proscription. A review is carried out to ascertain if a group has met delisting criteria.
Terrorist organisations have given birth to splinter groups, making identification, surveillance, and tracking of financial resources harder. Globalisation has made membership accessible to those inspired by their militant ideology. In some cases, militants remain affiliated with several groups, creating problems for law enforcers. After 9/11, proscription did not remain just an internal security issue; it was also included in the foreign policy agenda.
The debate on the proscription powers of states and international government organisations has intensified post 9/11. The EU maintains its own list of persons and groups, reviewing it regularly. In the US, the secretary of state designates the list of foreign terrorist groups.
In the UK, the home secretary may ban a group with terrorism links; so far 76 international groups have been banned. A group can appeal, but it’s for the secretary to accept or reject the application. An appeal may be made to the Proscribed Organisations Appeal Commission. The ‘exiled government’ of Tamil Eelam filed a case against the home secretary, saying the Tamil Tigers were no more engaged in terrorism. But the Joint Terrorism Analysis Centre advised they remain banned. In the UK, the People’s Mujahedin of Iran is the only group to have successfully applied for de-proscription. The latter must be boosted through judicial, legislative and executive oversight. Many say proscription should be a judicial rather than an executive process.
Proscription shouldn’t be confined to naming and shaming. Categorising such groups as active, dormant, sectarian, ethnic, international and regional, and exchanging information with states, tracking financial linkages, improving cyberspace detection, public cooperation and better judicial and parliamentary oversight will raise transparency and human rights standards.
The writer is author of Pakistan: In Between Extremism and Peace.
Published in Dawn, June 4th, 2021