WHY ANTI-TERRORISM LAWS ARE NOT EFFECTIVE IN DEALING WITH TERRORIST OFFENCES?
INTRODUCTION:-
Terrorism is commonly
understood to refer to acts of violence that target civilians in the pursuit of
political or ideological aims. In legal terms, although the international
community has yet to adopt a comprehensive definition of terrorism, existing
declarations, resolutions and universal “sectoral” treaties relating to
specific aspects of it define certain acts and core elements. In 1994, the
General Assembly’s Declaration on Measures to Eliminate International
Terrorism, set out in its resolution 49/60, stated that terrorism includes
“criminal acts intended or calculated to provoke a state of terror in the
general public, a group of persons or particular persons for political
purposes” and that such acts “are in any circumstances unjustifiable, whatever
the considerations of a political, philosophical, ideological, racial, ethnic,
religious or other nature that may be invoked to justify them.”[1]
UN Security Council Resolution 1566
(2004)
gives a definition:
“criminal
acts, including against civilians, committed with the intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to provoke a
state of terror in the general public or in a group of persons or particular
persons, intimidate a population or compel a government or an international
organization to do or to abstain from doing any act.”[2]
Terrorism actions as those
that:
(a) [involve] serious violence
against a person,
(b) [involve] serious damage
to property,
(c) [endanger] a person’s
life, other than that of the person committing the action,
(d) [create] a serious risk
to the health or safety of the public or a section of the public, or
(e) [are] designed seriously
to interfere with or seriously to disrupt an electronic system.[3]
Pakistan’s
Anti Terrorism Act, 1997 Section 2 (x) Read With Section 6 defines
the word terrorism in detail.
Terrorist
attacks are not new to Pakistan. Incidents of sectarian violence and terrorism
openly began in the country in the 1980s. From 1974 to 2010, 4,438 terrorist
attacks have been reported in Pakistan. From the onset of their occurrence,
Pakistan's successive governments have tried to develop an antiterrorism legislative
mechanism to counter anti-state forces that were spreading violence. Various
acts were enacted by different governments that came into power, mainly
extending their powers while they were in office. The Nawaz Sharif government
finally promulgated the Anti-Terrorism Act (ATA) in 1997, which still drives
the anti-terror legal regime of Pakistan. Four years later, the September 11, 2001
attacks landed Pakistan at a crossroads in the U.S-led Global War on Terror (GWoT).
Pakistan is faced with unprecedented challenges in terms of its legislative framework
to counter the growing threat of terrorism. Despite the establishment of a parallel
judicial system with special Anti-Terrorism Courts (ATCs) created to hold speedy
trials of terror suspects since 1997, the number of detainees has increased over
the years while the rate of prosecution and conviction remains stunted..[4]
CASE
|
DATE
|
ACCUSSED AND ARRESTS
|
CURRENT STATUS
|
|
1
|
Marriot Hotel Bombing – Islamabad
|
September 20, 2008
|
Interior Minister Rehman Malik says banned militant outfit
Lashkar-e-Jhangvi was involved in the blast.
|
Justice Malik Muhammad Akram of Anti-Terrorist Court
has acquitted Dr Usman, Rana Ilyas, Hameed Afzal and Tehseenullah Jan
all charged as accused as the Police have failed to provide
evidence against them.[7]
|
.
|
Daniel Pearl Killing – Karachi, Sindh
|
February 1, 2002
|
Three suspects were caught after the IP address of
those who sent the ransom e-mail was traced by the Karachi Police.
Later, Ahmed Omar Saeed Sheikh, one of the released terrorists in Kandahar,
was also arrested.
|
Omar Sheikh and three others were charged with murder for
their role in the kidnapping and murder of Daniel Pearl. They were convicted
on July 15, 2002, and Sheikh was sentenced to death. Sheikh has appealed the
sentence, but his plea is yet to be heard; no definite date has been set, as
yet. On Mar 10, 2007, Khalid Sheikh Mohammed, a third in command uder Osama
bin laden claimed responsibility for Pearl's death.[8]
|
3.
|
Karachi Bus Bombings – Karachi, Sindh – 11 French
Engineers and 2 Pakistanis were killed
|
May 8, 2002
|
On September 18, 2002, a Sharib Zubair was arrested as
the master-mind of the attack. In 2003, a Karachi court sentenced two men for
the bombing. The suspected bomb maker Mufti Mohammad Sabir was arrested on
Sept 8, 2005.
|
Two of the men have had their convictions overturned since.[9]
|
4
|
Karachi Bombing – killed 140 and injured over 350 – seen
as an assassination attempt on Benazir Bhutto upon her return to Pakistan
|
Oct 18, 2007
|
Qari Saifullah Akhtar and his three sons were arrested at
Ferozwala near Lahore on Feb 26, 2008. Akhtar is linked to Al Qaeda
chief Osama bin Laden and was head of the outlawed Harkat-ul-Jihad al-Islami.
|
Saifullah was freed on March 28, 2008 due to a lack of
evidence. [10]
|
5
|
Hafiz Saeed placed under house arrest
under Maintenance of Public Order Law
|
December 11, 2008
|
On September 18, 2002, a Sharib Zubair was arrested
as the master-mind of the attack. In 2003, a Karachi court sentenced two men
for the bombing. The suspected bomb maker Mufti Mohammad Sabir was arrested
on Sept 8, 2005.
|
Lahore High Court in June 2009 ruled that his detention was
unconstitutional and ordered his release. He was placed under house arrest
again in September 2009. But on October 12, 2009 the Lahore High Court
quashed all cases against Saeed.[11]
|
6
|
Gunmen attack the Sri Lankan Cricket Team near the Gaddafi
Stadium in Lahore
|
March 3, 2009
|
Over 250 people were arrested including four persons said to
be prime suspects. Jaish-e-Mohammad (JeM) and the Lashkar-e-Jhangvi (LeJ)
were said to be behind the attack.
|
Mastermind Mohammed Aqeel, an activist
of LeJ, escaped a Police raid on his home in Kahuta on March
9, 2009. But Punjab Police managed to nab him later. Aqeel who also
goes around as Dr Usman of Kahota, is alleged to have links with
Tehrik-i-Taliban Pakistan (TTP) Chief Baitullah Mehsud.[12]
|
Pakistan Army General Headquarters Attacked – 9 soldiers and 2
civilians killed - Rawalpindi
|
October 10, 2009
|
One militant captured alive – Dr. Usman
|
Dr. Usman was the same person who had earlier been caught with
regards to the Marriot attacks and had been acquitted due to a lack of
evidence. He is in the army’s custody at present.[13]
|
There
are so many factors / problems involved which bring the implementation of Anti-
Terroris laws in Pakistan impossible. Some of the factors / problems are given
below:
The poor
police system of Pakistan is perhaps also the foremost reason attributing to
the failures in the ATCs' ability to execute speedy trials. The present police
system in Pakistan is a continuation of the one created by the British in 1861
for the Indian Sub-continent and one which was according to the social,
political and administrative requirements of that time. Today, not only has the
technology in the world evolved but the nature of threats has also changed
immensely. Unlike the developed countries where the police are highly trained
and equipped, the training given to the police in Pakistan is not only just
archaic in content, it is also weak in methodology. There is also an absence of
a reliable performance appraisal system.
If we
compare our system with UK, USA and any other developed countries our system is
very poor and ineffective. The UK Terrorism Act 2006 did not pass with ease,
however. Criticism of the law led to intense national and international debate.
Although Tony Blair announced his intention to create the new legislation
shortly after the July 7 bombings in August 2005 and the Act’s debate history
stressed the need for haste in passing the Act, Parliament did not pass the
legislation until March 2006. The House of Lords twice rejected the
"glorification" provisions in the bill passed by the House of
Commons. The House of Lords finally acquiesced and passed the bill on its third
vote after the then-home secretary promised to reconsider all terror legislation
the following year.[14] In 1972, the UN General Assembly appointed
an Ad-hoc Committee to study the question of international terrorism.[15] The Terrorism Prevention Branch of UNODC
has produced two guides for use by policymakers, legal drafters and
legislators: the updated Legislative Guide to the Universal Legal Regime
against Terrorism47 and the Guide for the Legislative Incorporation and Implementation
of the Universal Anti-Terrorism Instruments.[16]
The issue
of the lack of a proper mechanism to collect and preserve authentic evidence to
present in court is another serious shortcoming for the effectiveness of the
ATA. Not only does evidence become scarce as witnesses flee in cases of
powerful and dangerous terrorists, the lack of witness protection further
aggravates the matter. Another way the evidence for terrorism suspects is lost
is when suspects are transferred from different locations to the interrogation
cells. This is particularly true in the case of FATA which is outside the
jurisdiction of ATA. Captured militants from these areas have first to be
detained in internment centers and then transferred to areas that fall under
the jurisdiction of the ATA. In such cases, the Joint Investigation Teams
(JITs) in the interrogation cells are not in direct contact with the local
eyewitnesses who can provide credible evidence for the accused.[17]
The powers of the
Pakistan Police are very limited when it comes to handling terror
suspects. They are not provided proper data bases with regards to these
suspects nor are they allowed to tap phones of any suspects. All this falls
under the jurisdiction of the intelligence agencies, which prefer to work at
their own pace and according to their own will. The ISI usually takes days before
complying with the requests made by the police and when the action is taken, it
is deemed futile as the period of achieving any sort of success has actually
passed away. The other side is that small technicalities lead to the acquittal
of the accused. The intelligence agencies are not ‘legally’ allowed to arrest
suspects. This can be done only through the police. These agencies hence go on
to nab the suspect and then involve the police to provide backdated First
Information Reports (FIRs). The defense lawyer latches on the anomaly and that
leads to acquittal. Hence even if the agencies are sincere in their efforts to
prosecute the terror suspects, their way of functioning hinders the trial.
It has also
been reported that police forces across the country operate wildly different
interpretations of the Act and that the number of stops and searches under the
2000 Act has gone up dramatically in the last year.[18] While we acknowledge that
to some extent, this reflects the different level of the terrorist threat in
different parts of the UK, we believe there is evidence that different police
forces interpret and use the powers available to them much more widely than
others. For example, Kent police, who patrol the sensitive Channel Tunnel, use
anti-terror laws vary rarely; while Hampshire police, which patrols a largely
rural area, carried out nearly 4,500 anti-terror stops and searches in the
July-October 2005 period. Section 21 of UK Terrorism Act 2000[19] also deals with
Cooperation with police.
Another
alarming loophole in the ATA is that many of the detained terrorists are
released after the expiry of their detention without even undergoing a trial.
Though theoretically in the ATA, investigation and prosecution of one case
should be conducted within seven working days, the practice has been the
contrary. The release of the suspects is occurring more frequently than the
overall number of trials. For instance, the former Punjab government captured
152 suspected activists linked with proscribed organizations in joint raids
conducted by intelligence agencies in different areas of Punjab. Out of these,
56 were released as their detention period expired.[20] Flaws in the trial
process and the role of the prosecution are reasons behind the high rate of
acquittals. The prosecutorial services in Punjab were introduced through the
Punjab Criminal Prosecution Service Act 2006. After this act came into
operation, the total prosecution services in Punjab, from the registration of
the FIR up to the conclusion of the case by the Supreme Court of Pakistan, came
under the Punjab Criminal Public Prosecution Service Department.[21]
Another
major obstacle in the prosecution of suspected terrorists is the security
concern for judges, state prosecutors and witnesses. The biggest shortcoming of
the Anti-Terrorism Courts perhaps is the lack of witnesses at the time of
trials of dangerous terrorists. As such theory as concern it is provided in
Section 21 of THE ANTI-TERRORISM ACT, 1997[22] to provide protection to
the witnesses but presently enforcement agencies are failed to provide security
and protection to the witnesses.
·
The developed countries like USA, UK, France etc are really hard
work to collect evidence especially in terrorism cases and once they collect
some evidence they do not want to lose that evidence, therefore, they provide
full security and protection to the evidences they collect.
Pakistan's
prison system is as corrupt and flawed as is its police system. This has been
clearly manifested in the jail-breaks of Bannu in April 2012 and of D.I Khan
Central Prison on July 30 this year. What is extremely absurd is that despite
continuous domestic security threats and hundreds of terrorist attacks claiming
thousands of lives, Pakistan, one of the most dangerous countries on earth,
does not have a single federal high security prison. A high security prison
would not only keep the most dangerous terrorist inmates segregated from other
petty criminals but it would keep suspected terrorists under high security and
constant observation, which is much needed to avoid any future jail-breaks.
Khyber Pakhtunkhwa, a province especially affected by terrorist violence, at
least could have had one. What is even more alarming is that, even in this
province, terrorist suspects are kept in the same barracks with prisoners who
may be remanded prisoners, juveniles, first-time or low-level offenders. A lack
of segregation between ordinary criminals and dangerous militant inmates also
means that there is a high likelihood that the former can become susceptible to
indoctrination by the latter.[23] In Pakistan there is no
separate prison system for high profile cases and terrorists.
·
In England, HM Prison Belmarsh is a Category A men's prison,
located in the Thamesmead area of the Royal Borough of Greenwich, in south-east
London, England. Belmarsh Prison is operated by Her Majesty's Prison Service. Isis
Prison and Thameside Prison. Belmarsh is adjacent / adjoined to Woolwich Crown
Court, which means the prison can be used for high profile cases (including
those concerning national security).[24]
If we
compare definition of the word “terrorism” given in Anti- Terrorism Act, 1997
with the definition of Anti-Terrorism Acts of different countries, the
definition of Pakistan ATA is longest definition. Therefore there are so much
irrelevant cases are pending in Anti Terrorist Court of Pakistan and by these
irrelevant cases there is useless burden on the Anti Terrorist Court. The
constant amendments made to the ATA have widened the range of criminal
activities dealt with by the Anti-Terrorism Act to even include cases of kidnapping,
extortion, arms trafficking and gang rape. This means with so many other
criminals to prosecute other than the terrorist Taliban, the special Anti Terrorism
Courts have now an increased backlog of pending cases. The special Anti- Terrorism
Courts, rather than only dealing with the cases where there is a connection
with a terrorist organization or presence of terrorist intent, are now dealing
with cases that should otherwise be dealt with under the ordinary law, i.e., the
Pakistan Penal Code.
·
Corruption
·
Lack of Political Will
·
Lack of Funding to Enforcement Agencies
·
Competency
[2]
Resolution 1566 (2004) Adopted by the Security Council at its 5053rd meeting,
on8 October 2004
[3]
Terrorism Act, 2000, c. 11, pt. 1, § 1(2)(a–e).
[4]
PAKISTAN'S CHALLENGES IN ANTI-TERROR LEGISLATION By Ms Sitwat Waqar Bokhari
Center for Research & Security Studies October, 2013.
[5]
Figures compiled by South Asia Terrorism Portal.
[6]
Chaudhary Fawad Hussain. ‘Why Terrorists get acquitted?’ The News. June 22,
2010.
[7]
Four accused in Marriot Bombing Case acquitted. Dawn.com. May 5, 2010.
[8]
Two Including Pearl Murder Suspect Arrested’. Daily Times. April 17, 2004.
[9]
French Nationals killed in Karachi over Kickbacks.’ Dawn.com. June 19, 2009.
[10]
Benazir attack suspect freed.’ Daily Times. June 17, 2008.
[11]
LHC orders quashing of FIRS against Hafiz Saeed. The News. October 13, 2009.
[12]
Sri Lankan Team Attack suspect held’. Dawn.com. June 17, 2009.
[13]
Aqeel alias Dr. Usman, the GHQ attack mastermind, previously arrested and
released.’ Let us build Pakistan. October 12, 2009.
[14]
Woodward, supra note 32, at 5; Jones, supra
note 32.
[15]
“Terrorism and the Criminal Justice System” BY MR. JUSTICE IFTIKHAR MUHAMMAD
CHAUDHRY CHIEF JUSTICE OF PAKISTAN
[16]
Handbook on Criminal Justice Responses to Terrorism CRIMINAL JUSTICE HANDBOOK
SERIES
[17]
Ibid
[18]BBC,
‘Are police misusing stop-and-search?’, 23 October 2005, http://news.bbc.co.uk.
[19]
UK Terrorism Act 2000
[20]Ibid
[21]Gull
Erum Sajjad. ‘Prosecuting Terrorists’. The News. June 26, 2010
[22]
THE ANTI-TERRORISM ACT, 1997
[23]
Ibid
[24]
http://en.wikipedia.org/wiki/HM_Prison_Belmarsh
