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Terror and the law

January 20, 2013

THE criminal justice system of Pakistan stands on three pillars: investigation, prosecution and the judiciary. In a case registered under the Anti-Terrorist Act (ATA), 1997, the trial courts are the anti-terrorism courts (ATCs).

The duty of the police as the investigation agency is to trace the culprits and collect evidence against them, and forward that to the prosecution department within the stipulated period. The latter is statutorily bound to scrutinise the report under the law and if the case is fit to be tried, send it to the trial court. The judiciary has only one duty: to deliver justice.

Terrorism has been exhaustively defined in Section 6 of the ATA, and the country’s superior courts declare any “action” an act of terrorism if it is “designed to” coerce the government or to incite sectarianism etc.

The ATA is a mixture of two kinds of law, substantive and procedural. The former lays out what to do. For instance, the Pakistan Penal Code (PPC) identifies the punishment for offences — duration of imprisonment, etc. Procedural law, however, explains how to go about it, e.g. the Criminal Procedure Code (CrPC), 1898, stipulates the way the to carry out these punishments, etc. The ATA, 1997, includes both sorts of law.

The provisions of the ATA contain, to some extent, substantive law, but the law is mainly procedural. The CrPC has been made applicable to proceedings before special courts under the ATA. This means that the ATA emphasises procedure which is different from a normal criminal trial, such as special courts and speedy trials.

However, whenever the ATA is silent on procedure, the law as applied in usual criminal trials and in the CrPC prevails. The ATA is not exhaustive in nature, and thus the CrPC and the Qanoon-i-Shahadat (the law of evidence) and judgments of the higher courts are used in aid of the ATA to reach decisions.

In Pakistan, two kinds of law are applicable: general law (the PPC, CrPC, the Code of Civil Procedure and the Contract Act, etc) which is applicable to the public at large, and special law which is applicable in special circumstances or meant for special ties between parties (family laws, civil service laws, rent-control laws, banking laws and the anti-terrorism law).

Both special and general laws sometimes clash in their applicability and procedure, and it is a settled principle that whenever there is such a clash the special law prevails. Thus, the ATA being a special law, its provisions will always override the provisions of general law.

The ATCs are creations of the ATA. This essentially means that ATCs, like other sessions (criminal) courts in Pakistan, follow established principles of the criminal justice system evolved by the Supreme Court. Thus, when a suspect is sent to the ATC to be tried under the ATA, he is initially presumed to be innocent and the onus is on the prosecution to prove his guilt beyond any reasonable shadow of doubt.

The ATA interacts with some other laws as well. The provisions of the Juvenile Justice System Ordinance, 2002, for instance, are to be read with other laws, including the Narcotic Substances Act, 1967, and the ATA.

This means that when children commit crimes in the ambit of terrorism, they will be tried under juvenile courts rather than ATA courts. However, there are exceptions. Since many suicide bombers whose missions have been aborted are juveniles, they have been apprehended under the ATA rather than the law specific to juveniles. This needs to be reviewed.

Special courts such as the ATCs are competent to entertain a private complaint directly. A private complaint can be sent to an ATC by a complainant or a prosecution agency without first approaching a magistrate’s court. However, this rarely occurs in terrorist cases and most submissions (challans) to the court are submitted by the police.

It is a settled principle in the ATA that the armed and civil armed forces can facilitate the government in emergencies. Legal cover is provided to special situations such as the counterinsurgency operation in Swat.

Section 5 of the ATA gives power to police and the armed forces to use force against the terrorists to stop them, but the same power is subject to Article 14 of the constitution, which states that the dignity of man and the privacy of his home, subject to the law, are inviolable.

An important aspect of the act, highlighted by the Supreme Court, is that terrorism is a sine qua non for applying the provision contained in Section 6 of the ATA. Terrorism can hardly be determined without examining the nature and gravity of the offence, FIR contents, the effect on society and evidence that is already on record.

Section 7 of the ATA determines the punishment of the crime committed, and it is in the hands of the police to determine — after hearing out the complainant — whether the occurrence falls under Section 6, and under what category of Section 7 of the ATA it will be tried.

Notwithstanding the legal problems, there is much that can be done within the ambit of the ATA to improve the functioning of the ATCs.

Perhaps some sort of judicial task force on reform and effective implementation of the ATA could be set up with a mandate to look into the flaws in Pakistan’s anti-terrorism laws and the difficulties in effectively implementing them.

The writer is a security analyst.