New powers, old fears: experts react to anti-terror bill

KARACHI: The proposed amendment to the Anti-Terrorism Act,1997 granting armed and civil armed forces increased powers of preventive detention, has drawn mixed reactions. While proponents argue that these measures are necessary to counter rising terror threats, critics warn that they open the door to potential human rights abuses and constitutional violations.

On Friday, an amendment in Section 11EEEE to the Anti-Terrorism Act of 1997 was proposed in the National Assembly, allowing armed forces and paramilitary forces to detain individuals suspected of serious crimes, including terrorism, for up to three months -- with the option also to increase the period of detention. A high-level Joint Investigation Team (JIT), including law enforcement, armed forces, and intelligence personnel, would oversee the investigation process. The movers of the amendment have added a statement of objectives which says the amendment seeks to empower security forces to act on credible threats to disrupt potential terrorist activities before they occur.

Talking to The News, civil rights lawyer Asad Jamal deconstructs the amendment, explaining that Section 11EEEE was first introduced as a set of provisions in 2014 with a sunset clause of two years and gives the government as well as the armed forces or civil armed forces the power to issue an order for preventive detention of a person for up to 90 days (three months) which may be extended for an additional three months, for ‘inquiry’.

Jamal believes that Section 11EEEE is phrased in a manner that is “quite vague and open-ended. It is not certain and is worded in a manner which can be construed and implemented by executive authorities narrowly and strictly as principles of criminal law require it to be phrased. It also does not comply with international standards for counterterrorism measures, laws and policies”.

What Jamal finds more problematic in “practical terms” is the fact that the amendment gives the power to pass an order of detention after arrest to armed forces “without any civilian oversight, even if there is no (concrete) evidence and no court has held the person guilty of having been involved in any offence (terrorism or ordinary) whatsoever. In either case, there is no judicial oversight. Such detention can be based on mere suspicion”.

Jamal says that this is “essentially a kind of remand of suspect persons’ custody to the executive authorities without judicial oversight, and introduces the possibility of legalising enforced detention by bringing in the legal domain of the Anti-Terrorism Act of those who have already been taken in custody by executive law enforcing authorities without disclosure and information having been provided to the arrested/detained person and his family and without having granted him access to a counsel of his choice or an independent counsel as part of his due process rights as required under Article 10 of the constitution.”

For Jamal, this opens the door to violations of fundamental rights as well as puts in jeopardy Pakistan’s international obligations “especially under the United Nations Convention against Torture and International Covenant on Civil and Political Rights”.

When asked by The News about any human rights concerns regarding the amendment, Adviser to Prime Minister on Law and Justice Barrister Aqeel Malik is categorical in his answer: “These are not unfettered powers”, he says, adding that “due process is part of this and will be maintained”.

And is there any merit also to the fear -- implied in some social media posts -- that this amendment could be used to target political opponents? Barrister Aqeel is again definite in his answer: “The amendment is not aimed at persecuting or subjecting any political party to detention etc.”

Malik says that this amendment “purely deals with terrorism and terrorist activities and groups -- not any political party”. The government’s stance is that rising terror incidents dictate that these measures be taken. Per Malik, “We have seen successful operations like Operation Zarb-e-Azb and Raddul Fasaad; we now feel we need this [amendment] due to the rising terror attacks. Just today we saw one [attack] in Mastung”.

Former IG police Syed Kaleem Imam has one question regarding the amendment -- “does this decision have inclusivity? As in: are all stakeholders on board with this? Have the IGs and the police forces of Khyber Pakhtunkhwa and Balochistan recommended this step be taken and said that things have gone beyond their control?”

As regards detention, Imam tells The News that “due process and Article 10 must always be kept front and centre”. For the former IG, what is more important is to see whether, before starting something new, the institution [the police in this case] was “equipped in the right manner. Was capacity building done? Were resources and trainings strengthened?”

What would make more sense is to strengthen the police forces, says Imam: “Let them do their job and help them do it well. Give officers tenure, get the right man for the right job, give them unity of command, make them accountable. That would help us much more than anything else”.

Advocate of the Supreme Court Hafiz Ahsaan Ahmad Khokhar sees the amendment a bit differently. He says that “in almost every country there is a concept of detention of suspects in heinous or anti-state offences which otherwise means a pre-trial status of a period of a suspected criminal. Such period varies from a certain period to an indefinite period”.

In the US, says Khokhar, an “indefinite period of detention of a suspect has been allowed through the National Defense Authorization Act and the Patriot Act”. He adds that there is a provision for seven years of detention “in Turkey, and indefinite in Saudi Arabia, UAE, China, Egypt and many other countries”.

Khokhar explains that the amendment is not against the law and “specifically applies to those who are involved in heinous offences, terrorist activities, anti-state involvement etc”. That said, the SC advocate recommends that, instead of amending the Anti-Terrorism Act, the federal government should come up with new legislation on how to deal with anti-state activities. Khokhar adds that “because of the misapplication of the ATA and due to poor investigation and prosecution, the conviction rate [in terror cases] is deplorable”. This is why it is important that, while applying the provisions of the anti-terror law, “major reforms and changes be introduced by adopting best international practices in investigation, prosecution and court proceedings”.