Sunday, December 30, 2012

Anti Terrorism Law



Permission of Asia Society to publish this paper on a very important subject is acknowledged with gratitude. This was recently published by the Asia Society publication on 'Stabilizing Pakistan Through Police Reform'.  Zulfiqar Hameed is one of the outstanding officers of Police Service of Pakistan and is directly involved in application of anti terrorism law in a weak legal framework that has failed to counter the wave of terrorism in Pakistan. His recommendations should be taken seriously by the policy makers. Afzal A Shigri

Antiterrorism Law
 Zulfiqar Hameed                                                                                                                                                            
                                                                                                                                                                                                                                                                                                                                                                                                   
 Since the   beginning of 2005, Pakistan has experienced an alarmingly high rate of terrorist attacks. Incidences spiked in 2009 and, though they receded in 2011, the numbers are still concerning. Terrorist attacks are not new to Pakistan , according to one estimate , there  were at least 4,438 such attacks throughout the country from 1974  to 2010 .Attack subsided from , there at least 4,438 such attacks unprecedented rates between 2007 and 2011 . Figures of fatalities vary; according to one estimate, there were more than 40,000 fatalities attributable to terrorist attacks from 2003 to 2012. Faced with such a serious onslaught, Pakistan must reform its criminal justice system in order to ensure that terrorism is being handled effectively, that perpetrators are adequately punished, and that the menace of terrorism is brought under control.                 
While law enforcement agencies and civil legal institution are the most appropriate forums in which to tackle terrorism, the performance of those bodies has been anything but satisfactory. Without a major reform effort, civilian law enforcement agencies including the police will continue to be unequipped to handle the herculean   challenge facing them. Pakistan’s police force is under resourced, poorly trained, badly paid, low in morale, and viewed with suspicion by the courts and society because of its poor human rights record. Most police are regarded as corrupt, inefficient, and unprofessional   . There are minimal forensic facilities   or modern equipment to assist them in doing their job.
The situation in the courts is similarly dismal, and there is deep and widespread   dissatisfaction with their record in punishing terrorist. In their defence, the courts contend that the police fail to provide enough evidence; the police respond that the courts favour defendants and that the standard of evidence is impossible to attain. In this back and forth, the larger goal of addressing the issue of terrorism suffers.
Anti -Terrorism Act 1997 was enacted at the federal level and applies nationally except in the federally administered Tribal Areas. The act establishes special antiterrorism courts and confers special powers on these courts as well as law enforcement agencies. Two serious criticisms have been made of the ACT.


The first is that it is overly broad and does provide sufficient safeguards against abuse of its special provisions. The second is that it is ineffective in achieving its objective of punishing terrorists.
Though this criticism may be legitimate, an accurate assessment of the Acts’ effectiveness has yet to be conducted because of a critical lack of data. To rectify this situation, this chapter will analyze data on police performance,   the record of cases prosecuted under the ACT-Terrorism ACT. The types of cases registered under  the Act, and judicial decisions made under the Act, The data that follow pertain to Punjab province, which was selected as a case study because it is both the largest and the most populated  province and because it was severely affected by the recent spate of attacks from 2008 to 2011. The data pertain to the year 2005 to 2011 unless otherwise stated and were obtained from the Investigation Branch of the Punjab police, which collects all such data relating to police work in the province.                                                   
                                                                                                                                           
                                                                                                                                           

 Police performance under
 Anti- Terrorism Act                                                                                     
                                                                                                                                            
 Police performance can be measured by looking at the number of cases registered by the police under Anti- terrorism Act in the first instance and the ratio of cases that ultimately are sent to court and tried (see Table 1). Although the general perception of terrorism cases is that most involve bomb blasts, suicide attacks or weapons of mass destruction , in actual practice, any case that is defined under Section 6 of the .Anti- terrorism Act as a purported act of “terrorism”  falls under the jurisdiction of the anti=terrorism courts and therefore is investigated and tried under the Act .
    Looking at the data reported in Table 1, several observations can be made:
  • The total number of cases registered (by the police) and tried (by the courts) under the Act is quite large more than 4,000 in seven year, averaging 574 annually.
  • A relatively large number of cases registered incorrectly in first instance. This conclusion is drawn by looking at “cancelled” by the police (263, or 6.54 percent of total cases), wrongly applied, or “deleted” (88 cases, 2.19 percent). Cases that are cancelled are those that the police found during the investigation to be wrongly registered because the incident did not occur, and thus the allegation is false .Deleted cases are those in which the underlying incident is accepted as correct but that the police investigation found should have been registered under the Pakistan Penal Code instead of the Anti- Terrorism Act. Together then more 8 percent of cases are incorrectly registered in the first place.
  • Around 5 percent of the cases register are not pursued and so are declared “untraced,” with the possibility that they may reopened if subsequent leads arise.
  • The most important number from points of view police work is the “Challan” ratio, which represents the number of cases sent court trial .A  complete Challan” indicates that the case has been completely investigated and sent  to court; an “complete Challan” indicates that all perpetrators have not been arrested , but the arrested perpetrators have been sent to court. Slightly over 52 percent of cases   are considered complete Challan,  while 28 percent of cases are considered incomplete Callan; when  both categories are combined , the total percentage of cases sent to trial is only 80 percent . Considering that these are most high- profile cases in the criminal justice system, this number leave much to be desired in terms of police performance.

Table 1: Cases registered and investigated under Anti-Terrorism Act
year
Total cases
cancelled
Untraced

Incomplete challan
Complete
challan
ATA deleted
Under investication
2005
403
18
37
96
240
7
5
2006
468
10
21
116
311
5
5
2007
541
14
17
143
358
7
2
2008
575
28
39
168
313
6
21
2009
729
31
25
246
359
3
65
2010
613
81
36
132
306
35
23
2011
690
81
17
221
228
25
118
Table
4019
263
192
1122
2115
88
239
%
100
6.54
4.78
27.92
52.63
2.19
5.95

Table 2 reveals an interesting and instructive statistic the annual registration of cases under the Act. Only 4.6 percent of cases involve bomb blasts or suicide attacks - cases tradition perceived as acts of terrorism - while the remaining 95 percent of cases fall under miscellaneous categories such as kidnapping for ransom, murder, acid throwing, police encounters, and other offenses. In reality, “terrorism” should refer to only those cases that involve action that attempt to inflict widespread damage with a terrorist, political, or sectarian intent or a connection to a organization. 
The problem with the in which the Anti- Terrorism Act is presently being applied, as is evident from the foregoing figures , is that in a large majority of cases, there is no connection with a terrorist organization or presence of terrorist intent . Cases that should be registered under the ordinary law of Pakistan instead are being registered under the Anti-Terrorism Act. This is attributable to a lack of a precise definition and the absence of safeguards against wrong registration within the Act. Arguably, some of these cases may involve terrorist organization, but by no means the majority. The implication of this number for resource allocation among the police and the antiterrorism courts established under the Act are obvious. With meagre resources, such overburdening of the system has debilitating effects for real terrorism cases.
It appears that the reasons for this wide- ranging registration of cases are twofold. First, the Anti-Terrorism Act includes the broad –based spectrum of offenses in its Third schedule. The Third schedule gives the government the power to include any offenses not originally covered under the Act but within the ambit of the act through a notification. Beyond that, the Act contains provisions that indirectly allow this broad scope to be enlarged if certain acts that fall outside the ambit of the legislation are perceived to be serious by the police. This measure is meant to give the police latitude in pursuing serious offenses. The potential for abuse here is glaring, and this leads to an overburdening of the machinery meant to cater to cases of terrorism. An inevitable consequence is that the courts have, over time, become wary of awarding harsher punishments even in real terrorism cases. Looking at all incidences of wrong registration under the Act , the wider point is that in intent of the lawmaker is being abused because of a misapplication of the Act and a critical absence of safeguards against such abuse within the Act itself.   
Table 2: Cases registered under the Anti-Terrorism Act
Year
Explosives Act
Kidnapping for Ransom
Police encounter
Multiple  murder
murder
Acid  Throwing  
other
2005
2.24
21.08
26.91
3.59
8.30
0.22
37.67
2006
3.92
20.68
22.82
5.53
0.00
0.00
47.06
2007
6.02
28.09
21.91
3.34
0.00
0.67
39.97
2008
6.90
35.23
19.34
3.00
3.75
6.90
24.89
2009
5.96
35.95
12.78
3.07
5.11
6.47
30.66
2010
3.09
34.27
16.57
2.53
3.51
5.48
34.55
2011
4.48
28.50
20.52
3.39
3.65
3.27
36.18
Average %
4.66
29.11
20.12
3.49
3.47
3.29
35.85

Prosecution of cases under the Anti -terrorism Act
Having examined the cases that are sent to the antiterrorism courts on the basis of police investigation, an analysis of the cases that are actually tried is in order. The earlier reflects quantitative police performance in terms of number, but the following analysis reflects the quality of investigation and prosecution. Further, it analyzes the performance of the courts operating under the Anti – Terrorism Act and effectiveness of antiterrorism law in terms of punishment, conviction, and deterrence.
Tables 3A and 3B detail prosecution in antiterrorism courts form 2005 to 2011 in absolute and percentage terms, respectively. It is important to note that is a considerable lag between the registration date of these cases and their eventual decision in courts - generally several years- and that after these cases are decided, most enter into a lengthy appeals process before sentencing commences.
                                                                                                                                             Looking at the figures, several observations can be made:
  • The most telling statistic in these figures is the rate of conviction in cases register under the Anti-terrorism Act. The highest conviction rate is slightly over 28 percent, and the annual average is just over 18 percent. This means that approximately 82 of the total cases tried do not end in conviction. When this figure is combined with the total cases sent to court after register (80 percent), it reveals that the chance of a case register under the Act ending in a conviction is approximately 14 percent conversely; the average rate of acquittal is high, at slightly over 36 percent. 

Figure 1: Average share of cases registered under
the Anti-Terrorism Act in Punjab, 2005-2011
                  



                                      Bomb Blast      Kidnapping       Police               Multiple              Murder                Acid                  Others
                                                                                   Encounter        murder                                          throwing


  • In nearly 13 percent of that arrive in antiterrorism courts, finds that the act was applied incorrectly, and therefore the case should be tried in ordinary courts (“transferred”). When this figure is added to the combined total of cancelled and deleted figure (6.54 percent and 2.19 percent, respectively) in Table 1, the extent of the problem become clear, as almost 22 percent of cases register under the act in the instance are ultimately determined to be out of the Act’s scope.
  • A large proportion of cases remain under trial at the end of each year, illustrating the extensive decision time for cases tried under the Act.

Table 4 reveals an interesting fact about the present legislation. In cases in which explosive are used for the purposes of terrorism, the act of possession or use is not covered the Anti- terrorism Act, but under the 1884 Explosives Act. Similarly, recovery of illegal weapons, even when involved in cases of terrorism, is covered not under Anti- Terrorism Act, but under the 1965 Arms Ordinance In order to examine the outcome of cases involving terrorist acts, not in technical terms but in terms of their impact, it is necessary to look at cases in which the Explosive Act has been applied in addition to the Anti- Terrorism Act. Looking at the conviction data in cases involving the Explosive Act (see Table 4), it is clear that the ratio of convictions in these cases is abysmally low - even when compared with the otherwise low conviction rates under the Act. Ultimately, this means that the area truly meant to be addressed by the Act ( i e., terrorism attacks involving explosive with a potential for mass casualties) has not been adequately addressed because of the absence of a separate definition and punishment for possession or  use of weapons of mass destruction under the Act.
Table 3B; Prosecution in special Anti-terrorism Courts, 2005
Year
Previous balance
Newly instituted
Total
Convicted
Acquitted
Transferred
Under Trial
2005
512
665
1,177
170
213
180
560
2006
560
854
1,414
335
455
178
446
2007
446
819
1,265
287
477
153
351
2008
351
768
1,119
169
383
206
361
2009
361
791
1,152
150
450
149
407
2010
407
831
1,238
240
593
79
326
2011
326
687
1,013
167
401
117
326












Table 3B; Prosecution in special Anti-terrorism Courts, 2005
Year
Convicted
Acquitted
Transferred
Under Trial
2005
14.44
18.10
15.29
47.58
2006
28.46
38.66
15.12
37.89
2007
24.38
40.53
13.00
29.82
2008
14.36
32.54
17.50
30.67
2009
12.74
38.23
12.66
34.58
2010
20.39
50.38
6.71
27.70
2011
14.19
34.07
9.94
27.70
Average %
18.42
36.07
12.89
33.71

Police Rules and High Court Rules
An important piece of corroboration evidence is the identification parade of accused by victims of offenses. Even in terrorism cases, courts ask that one be conducted. The present procedure for the identification parade given in the police Rules and in the High Court Rules is outdated and does not ensure the protection of witnesses. The practice requires a victim to go to jail, stand in front of a line up, and virtually touch the accused who has been  identified.  The complete disregard for the safety of victims has obvious ramification. Similarly, there is no provision in the Act for “trial incognito” or victim protection through voice and face distortion during trial proceeding, even though these are considered international best practices.
The 1984 Evidence Act defines “evidence” only as direct testimony in court. Modern types of evidence are not covered under the Act. 
Table 4: Conviction under the Explosive Act by 2008-2011

Year
Total Conviction
Conviction in cases where Explosive Act applied
% of total conviction during the year
2008
169
5
2.96
2009
150
14
9.33
2010
240
17
7.08
2011
167
14
8.38

Changes in the police Rules can be made through the instruction issued by the government, while changes in the High Court Rules require the assent of the High Courts. Amendments to the Evidence Act can be introduced by parliament. 

Recommendations
The foregoing picture illustrates the unsatisfactory nature of the present legal and institution regime for pursuing terrorism cases in Pakistan. While the data are limited to Punjab, the lesson can easily be applied across Pakistan. If certain steps are taken, the police and the courts can be effective in responding to and controlling terrorism in Pakistan. In view of the foregoing analysis, the following recommendations are proposed:
  • Completely revise Anti –terrorism Act 1997 to ensure that it addresses the areas it was intended for and does not leave room for abuse. This would require at least five  actions:   
                                                                                              
1.     Assign circumscribed, relevant, definition for the following fey terms: “terrorism” act,” “ weapons of mass destruction , and “ suicide bombing.” These definitions should reflect a careful understanding of the types of crimes that should be covered under the Act.
2.     prescribe new categories of offenses that cover crimes that are currently out of scope of the Act but are inexorably linked to the terrorism problem and thus should be prosecuted under the Act . These include the following :

ü  Federal offense for both the inter provincial transportation of explosives and conspiracy to attack across provincial boundaries.
ü  Attack on building and infrastructure of special nation significance.
ü  Possession of arms or explosives for use in terrorism, as a strict liability offense with heavier penalties for larger quantities.
ü  Use of nuclear , chemical , or biological weapons in terrorist attacks.

3     Provide procedural safeguards to ensure that strictly terrorism cases are register under the Act. This involves removing non - terrorism -related offenses (such as murders and police encounters) from the ambit of the Act. Next, as a safeguard against abuse, registration should require the approval of senior police officers.
4     Modify the Evidence Act and High court Rules to provide for incognito trials, protection of the identity of witnesses, a simpler procedure for admissibility of modern types of evidence (e. g., cell phone call data) in terrorism cases, and more effective rules for police testimony.
5     Confer legal power on investigation officers to obtain a broader spectrum of information on a real time basis for suspects involved in terrorism cases. Examples include basic information such as travel history, financial and banking transactions, phone call details, and cell phone data. Such information is presently either unavailable or subject to lengthy, delayed procedures.


  • Create a special cadre of terrorism investigators, given the chronic shortages of manpower, logistical resources, and expertise in ordinary police station. Although the Anti -terrorism Act provides for special courts, the same consideration is not made for investigators. These investigators should be properly trained, equipped with the necessary resources, and granted the legal power outlined. Punjab has already taken a step in this direction by counter Terrorism Department within the Punjab police. All terrorism cases should be assumed in the first instance by investigators from this cadre, instead of ordinary investigation officers, who are unequipped to handle such complicated and high- profile cases.
  • Establish a specialized federal agency for federal offenses under the act. The Nation Counter Terrorism Authority (NACTA), established in 2009, represents a step in the right direction, but the organization has been hampered by legal , organization , and financial constraints . If freed from these constraints, NACTA could have jurisdiction over federal offenses under Act as well as all nation counter terrorism efforts. It would also serve as a national clearinghouse for all data on terrorism.
  • Create an effective protection program for victim, witness, and official (investigation and judges) Date from a recent report show that the most common reason for acquittal in terrorism cases in Punjab is related to witness issues, with hostile witnesses representing 48 percent; lack of witness testimony, 27 percent and witness retracting their testimony because fear of reprisal, 27 percent .An effective witness protection protection   program is urgent in view of these finding.
  • Introduce modern methods of investigation into the legal regime. The concepts of plea bargain, polygraph testing, and relative guilt have been suggested, and they are positive ideas for reform. Police also need effective forensic support, and the legal regime must provide for forensic evidence admissibility in cases of terrorism.

1 comment:

jahan Khan said...

A glance at the cases being dealt under the Anti Terror law shows that most cases are not terrorist cases. They have been taken up under this law on account of public pressure or local political pressure.
There is a need to make rules that cases registered under the ATA shall only be investigated by the CID. This will leave out all the cases from the terrorist regime and only the truly terrorist cases will be taken up.
This would not be a great burden on the CID. In Sindh, of the over 1100 cases pending in courts only less than 30 are terrorist related. The remaining are ordinary cases where ATA has wrongly been applied.
The protection of officers dealing with terrorism and witnesses against them can only be possible by making amendments in Section 173 CrPC. A proviso needs to be added that if it is felt that the identity of the witnesses should be concealed then their names and that part of the statement which would help identify them should not be attached to the report submitted to the court.