The ineffective criminal prosecution of terror suspects has continually plagued the government of Pakistan, allowing the threat from extremists to grow. Despite the overtures to conduct peace talks with the Taliban, the Sharif administration has taken an increasingly aggressive stance on addressing the inadequacies in prosecution by passing several ordinances earlier this month. While many of the ordinances modernize the process of prosecution, others are equally draconian in their disregard for the fundamental rights of citizens.
The structure of terrorism prosecutions in Pakistan is based on the Anti-Terrorism Act of 1997, which empowered and created the Anti-Terrorism Courts to conduct prosecutions of terror suspects. The law has been revised by every administration, with an increasingly expansive attitude toward what constitutes terrorism. The ever-expanding definition of terrorism causes special terrorism courts to expend time and resources on ordinary cases of murder, Asad Jamal explains.
Despite (or perhaps because) of the expansive definition of terrorism, the prosecution rate of terrorism cases is woefully low. The government is unable to commence investigation on the thousands of terrorist operatives in the country, and the ones that are investigated are exonerated by the courts due to a lack of evidence.
Much ink has been poured to explore the reason for the lack of successful terrorist prosecutions because there are many causes to this deep-seeded problem. The first issue is one that countries around the globe are simultaneously confronting: namely, how does a government arrest and prosecute a terrorist before they commit their crime?
Most prosecutions and criminal investigations take place after a crime has occurred, but due to the nature of terrorism, the committing of that crime could be devastating. Therefore, countries have expanded their surveillance of electronic communication, such that they could use the terrorists own online admissions against them in a case for attempt or conspiracy to commit a terrorist act.
This is the model that President Mamnoon Hussain seems to have followed with the new ordinance amending the 1997 Anti-Terrorism Act. The Ordinance modernizes the rules of evidence and the ATA to allow the state to prosecute a terrorist purely based on their electronic communications. As such, if the terrorist sends SMS messages coordinating an attack, he/she could be arrested before the attack occurs and charged using electronic surveillance.
The second issue relates to the protection of witnesses. Terrorists can stymie the judicial process through their network of affiliates, who can murder or intimidate witnesses that are key in providing first-hand evidence necessary for a conviction. Tariq Khosa, advisor to the United Nations Office on Drugs and Crime, says key to proper prosecutions of terrorist suspects anywhere is the provision of enough protection for witnesses to feel unencumbered in offering their honest testimony. He cites a report by Punjab’s Department of Criminal Investigation, which found that more than 80% of terrorism cases resulted in acquittal due to witness intimidation.
Even more disturbing than witness intimidation is the fact that terrorist groups have killed, threatened, and intimidated judges preventing them from making aggressive decisions regarding terror prosecutions.
[quote]The new law allows police to search a premises without warrant[/quote]
The president’s Anti-Terrorism Amendment Ordinance of 2013 takes many of these issues into account by allowing terror suspects to be moved to any prison in the country. This makes witness or judge intimidation much more difficult. The ordinance also allows for witness statements to be given through video link or behind blind screens, allowing the witness to avoid the intimidating experience of facing the suspect in open court. Further, the speed of prosecutions has also been increased to avoid the lag-time in between the arrest of a suspect and their prosecution, during which witnesses were often intimidated.
The administration has also made public statements calling for the creation of a witness protection program that would provide safehouses and extended security to witnesses in terrorism cases. This would fall in line with the provincial bill passed in Sindh creating an agency to provide protection to witnesses.
While the aforementioned efforts all fall in line with the international community, some policies in the new ordinance have not been attempted elsewhere. First, the ordinance increases the shoot-to-kill authority of police and security agencies. This is likely to provide greater safety for security officials who must arrest terror suspects in dangerous locations with the likelihood of lethal threat from the suspect or his cohorts.
However, the government should seriously consider the implications of enhancing this license to kill, because it turns security agents into judge, jury, and executioner and threatens the writ of law in the country. Shehryar Riaz Sheikh, a barrister from Islamabad, says the provision tramples on the Pakistani constitution’s protection of the right to life and fair trial.
He said the new laws will also allow security agencies and police officers to search a premises without warrant, which could violate the constitutional rights to dignity and privacy of the home.
Lastly, the ordinance allows for the preventative detention of terror suspects for up to thirty days, so long as the state has credible evidence against them. The ATA has long-permitted preventative detention in order to allow the arrest and detention of a suspect while the state investigates them. While this preventative detention period was far greater under Zardari, up to 90 days, the continuation of a system of detention without prosecution could endanger the legal ground upon which terrorism prosecutions are to be built upon.
It is clear that the new presidential ordinances are an attempt to remedy a legal framework for prosecution of terrorism by the Sharif government, but some policies strike at the heart of fundamental constitutional rights. The administration should certainly dedicate the required resources to execute its plans to provide witness and judge protection, but it should reexamine its policies relating to shoot to kill, preventative detention, and warrantless searches. Much like other nations, this administration will need to strike a balance between security and freedom.
