Dr. Rajkumar Singh 6 May 2019
Today Pakistan is unable to contain the forces of anarchy it has unleashed. The struggle to establish a parliamentary democracy in a federal setting has been handicapped by inter-ethnic strife, social strains, fragmented elite, praetorian rule, and the influences of external power– both regional and global. Since independence, ‘the men on horseback’ have four times administrated governments by martial law, seeking to gain legitimacy through the so-called ‘civilianization and democratization of the military regimes. The present day Pakistan is a land where the problem rests on the belief of those that sustain terror through the employment of state institutions. The problem resides in the precincts of power in Islamabad–Rawalpindi that justifies the covert and overt employment of violence and terror as a tool of diplomacy. The use of Jihad and gun culture as tools of state policy to acquire strategic depth has boomeranged on Pakistan. Madrassas as ‘schools of hate’ that were created to wage the proxy war in Afghanistan and later in Kashmir have served, no doubt, Pakistan’s short–term interests. But in the long-term, they have created fanatical fundamentalists who are ultimately likely to wreck and ruin Pakistan. Drugs, weapons, and terrorism, originally meant for export, are now threatening to destroy Pakistan’s society and polity. In Pakistan, non–state actors possess money power, weapons and a certain mindset that is threatening society and has gone beyond the control of government to dictate how, when, and where these would be used and against whom. There were severe gaps in Pakistan promised and what it delivered.
Anti-terror laws of 1997
It was in that kind of situation prevailing in the country that Pakistan thought of making some new terror laws to control the terrorist organizations in a more effective way. Recently Pakistan passed the 1997 Anti–Terrorism Act. Under Section 5 (2) (1) of the Act the right to shoot to kill was provided under which an officer of the police, armed forces and civil armed forces may after giving prior warning use such for as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of the situation, against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offense, and it shall be lawful for any such officer, or any superior officer, to fire or order the firing upon any person or persons against whom he is authorized to use force in terms hereof. However, this provision of the Act was, and it is said that the enactment of broad regulations empowering summary execution is not the way a modern civilized state ought to act. Instead, the government should set strict limits to the circumstances in which firearms could be used to prevent arbitrary killing by the security forces. The broad powers are given to the police and consequently, to the military and civil armed forces contravene major international standards, human rights.
Several immunities were given to security forces in Section 39 of the Act while section 26 embodied the laws regarding admission of the confession.
To quote section 39 of the Act, ‘No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under this Act. This is equivalent to providing impunity to the security forces for abuses, including extrajudicial killings. To explicitly place any acts of police or other law enforcement personnel, including possibly random resort to lethal force, outside scrutiny and accountability may give law enforcement personnel the impression that they may commit such acts with impunity if only they can claim to have done them in good faith. The said provision breaches a basic requirement of the rule of law, namely its equal and exception less application to everyone. While section 26 says, ‘The special court may, for admission of the confession in evidence, require the police officer to produce a videotape together with the device used for recording the confession. Article 14 (2) of the Constitution of Pakistan prohibits the use of torture, though only in the limited context of extraction of a confession. ‘No person shall be subjected to torture to extract evidence.’ However, Pakistani law enforcement officials, to extract confessions whom the accused, routinely use torture. Lending higher legal weight to confessions and putting pressure on police to speedily resolve crime may indirectly contribute to the continued and perhaps increased use of torture.
Further explanations of terror provisions
Another sections 15, 31 and 22 of 1997 Anti–Terrorism Act defined the right to be tried in a public place without prejudice to the defendant, right to appeal and death penalty respectively. Under section 15 of the Act, the government may direct that for the trial of a particular case the court shall sit at such place including the place of occurrence as it may specify. As explained this is intended to expose the defendant to public expressions of outrage, anger or even violence for his deeds to humiliate him and to deter others by the specter of public exposure, it does not appear to serve the purpose of helping the judiciary establish the truth and do justice in a detached circumspect manner and calm circumstances. The right to be presumed innocent: The Act lays down that only special courts may grant bail to people tried for offenses under the law but they may not release a defendant on bail if there are reasonable grounds for believing that he has been guilty of the offense with which he has been charged and unless the prosecution has been given an opportunity to show cause why he should not be released. This provides the prosecution with the right to veto to deny bail.
Likewise section 31 reads, ‘A judgment or order passed or sentence awarded by a special court, subject to the result of an appeal under this Act shall be final and shall not be called in question in any court.’ By this provision, the possibility of the defendant to appeal to a court in the regular judicial system, either to the provincial court or the Supreme Court of Pakistan is therefore excluded. People convicted and sentenced by the special courts are disadvantaged in so far as their legal remedies are restricted: they have only one possibility of appeal, whereas people convicted by regular courts may also appeal to the Supreme Court. This provision violates the principle of equality before law laid down in the Constitution of Pakistan. It is also the fundamental principles of international human rights law.
Moreover, the right to appeal is restricted in so far as it is subject to severe limitations. The defendant may not in seven days be able to present an adequate appeal while the prosecution has 15 days for the appeal. Moreover, the right to appeal to those facing the death penalty also appears to be seriously infringed under the Act. Under section 7 (1) of the 1999 Amended Anti–Terrorism Act, for terrorist Act resulting in death, courts have to mandatory impose the death penalty. This does not give any discretion to the judiciary. According to section 22 of the 1997 Anti–Terrorism Act the government may specify the manner, mode and place of execution of any sentence passed under this Act, having regard to the deterrent effect with such execution is likely to have?. Section 22 opens the possibility for public executions of the death penalty.
Anti-terror ordinance of 2002
However, soon the Government of Pakistan felt the need of a more useful measure to combat terrorist activities, and in 2002 it issued an ordinance to include the military officers in the panel of judges to try terror offenses. This not only determines the independence of the judiciary but makes the anti-terror law in the country even more draconian. Described as necessary that appropriate administrative and judicial measures be adopted to fight a spate of terrorist activities and heinous offenses in Pakistan these anti-terrorism laws opened the door to grave violations of human rights including the right to safe, the prohibition of torture, the right to liberty and security and the right to a fair trial. Among other things they provide for the creation of anti-terrorist courts and give broad powers of arrest and interrogation to the police and army. Amnesty International, in its report, had criticized the legislation and held the view that the existing legal and judicial system is already equipped to deal with offenses referred to in the Act. The problem then seems to be a lack of implementation, not a lack of laws.