In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.

There is a saying that goes something like this: "you should never see how sausages and laws are made". Well, in the Islamic Republic of Pakistan, there is little danger of the former happening, however, there are plenty of opportunities to experience the latter. There are numerous examples of many silly, but harmless laws, as well as a few really dangerous ones that leave room for abuse - the Blasphemy Law is an obvious example. Another such law, which is well-intentioned but seriously flawed, is the Anti-Terrorism Act (ATA).

The ATA, which came into law on August 13, 1997, was formulated as a response to the deteriorating law and order situation in the country. In an effort to stem the ethnic, sectarian, and political violence that continues to pervade every corner of the country, particularly the urban centers of Punjab and Sindh, the government felt it had to do something. I think most concerned individuals, particularly those affected by this violence, would definitely welcome any effort made to quell it. However, this law, as perhaps most laws, has some flaws that leave it open to abuse. While all laws are only as good as their equitable enforcement, the ATA sets a very dangerous precedent for eroding the basic civil liberties of the people and legitimizing unlawful acts.

What is the ATA?

The Anti-Terrorism Act, 1997 (the Act) is intended to "provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto" (introductory paragraph of the Act); it explicitly overrides all other legal provisions (section 32), comes into force at once (section 1(3)) and applies to the entire country (section 1(2)).

The Act specifies that resort to the provisions of the Act should be preceded by the federal government notifying in the official gazette that "the commission of terrorist acts and scheduled offences have become commonplace in Pakistan" (section 3). Following this notification, the federal government may on its own initiative or upon the request by a provincial government, call in the armed or civil armed forces (which include the Frontier Constabulary, the Frontier Corps, the Pakistan Coast Guards, Pakistan Rangers or any other civil armed force notified by the government as such a force) to aid the civil authorities in the prevention or control of terrorist acts or scheduled offences" (section 4). In the pursuit of this task, these forces may exercise powers equal to those of the police (section 5(1)).
The powers of police -- and consequently of the armed forces or civil armed forces called in for the purposes specified in the Act are enhanced by the Act. Police and other law enforcement personnel may "after giving sufficient warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences" (section 5(1)). This may include the power of shoot to kill. Law enforcement personnel may "after giving prior warning use such force as may be deemed necessary or appropriate ... against any person who is committing, or in all probability is likely to commit a terrorist act or a scheduled offence, 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... " (section 5(2)(I)).
Law enforcement personnel may not be subject to "suit, prosecution or other legal proceedings" for any acts done in "good faith" under the Act (Section 39). Further, law enforcement personnel may under the Act arrest suspects without warrant (section 5(2)(ii)) and enter and search homes without warrant (section 5(2)(iii)).
Offences covered by the Act include "terrorist acts" defined in section, "acts intended or likely to stir up sectarian hatred" defined in section , scheduled offences listed in the appended schedule which include murder, incitement to religious hatred, and gang rape, as well as the attempt or abetment of any of these offences. The Act also empowers the federal or provincial government to add any offence to the schedule or delete any offence from it (section 34). It also authorizes the government to declare any association unlawful "in the interest of the maintenance of public order" (section 40). The punishment for any "terrorist act" which results in death is the death penalty; in other cases a minimum of seven years' imprisonment up to life imprisonment and fine is prescribed (section 7). The punishment for acts stirring up religious hatred is up to seven years' imprisonment with possible fine (section 9).
Police have to complete their investigation of anyone arrested under the Act within seven days (section 19). Though an extension may be granted by the court in exceptional circumstances, failure to speedily complete the investigation may lay police open to prosecution for contempt of court (section 19(2)) while "defective investigation" may lead to criminal prosecution of police by the Special Court which may sentence an investigating police officer with up to two years' imprisonment (section 27). Confessions obtained by police may be used in court against the accused subject to certain evidentiary rules (section 26).
Suspects arrested under the Act may only be tried by Special Courts directed to be set up by the Act (section 12); suspects arrested for offences allegedly committed before the Act came into effect may also be tried under the Act provided the punishment given corresponds to the punishment provided by the law at the time of the commission of the offence (section 38).
Special Courts may hear cases in any place the federal government may consider appropriate, including mosques or the places where the offences were allegedly committed (section 15). Special courts may also try suspects in their absence (section 19(10)) but must then appoint an advocate to defend him. Trials have to be concluded within seven days (section 19(7)). This time limit may only be extended if strictly required and only for two days. Appeal against conviction and sentence lies exclusively to Special Appellate Tribunals to be set up under the Act (section 24); the judgement of a special court, subject to the result of the appeal to the Special Appellate Tribunal, which has to reach a decision within seven days, is final (section 31).
Judges of Special Courts are directed to impose the maximum penalty prescribed by law; if a lesser punishment is given, the judge has to record the reason for this decision (section 20). The federal government may decide the "manner, mode and place of execution of any sentence ... having regard to the deterrent effect which such execution is likely to have" (section 22).
Criticism of the Act is risky: "A Special Court or an Appellate Tribunal shall have the power to punish with rigorous imprisonment for a term which may extend to six months and with fine any person who ... scandalizes the Court or Tribunal or otherwise does anything which tends to bring the Court or Tribunal ... into hatred, ridicule or contempt ..." (section 37).



Source: Amnesty International

On the surface, this law seems relatively harmless to most law abiding citizens. It appears to be tough on terrorism by decreeing harsh sentences and purports quick justice. It even pretends to afford some accountability for police actions. However, the law undermines the rights and liberties protected by the Pakistani Constitution. It establishes a parallel judicial system, thereby creating an inequity in the dispensation of justice. By virtue of exonerating the law enforcement agencies of any wrong doing, under the guise of "good faith", the government has legitimized extra-judicial killings. This possibility is further enhanced by the fact that the law enforcement agencies are required to complete their investigation in 7 days (a 2 day extension is allowed). Failure to complete an investigation in time, or the submission of erroneous evidence, results in contempt of court. This basically acts as an incentive to be judge, jury, and executioner. Furthermore, police may arrest suspects and search houses without warrants - another very dangerous precedent, given the law enforcement agencies propensity for finding scapegoats and staging fake encounters.

I suspect most people would react to the provisions of the Act by saying that they wouldn't mind giving up some of their civil rights for the sake of safety. However, once again, we are looking for quick fixes that do more harm than good. And once again, we as members of the privileged class - we can safely assume that everyone reading this is literate, has electricity and access to computers - perhaps fail to see how this law can be abused to victimize the poor, uneducated, and unconnected masses. We can call on our connections to help us when our civil rights are violated. What does the rest of the population - the majority - do when it is victimized by criminals AND law enforcement agencies?

Once we acquiesce to such laws, we start sliding down a very dangerous and slippery slope. The damage this law causes is akin to using a sledgehammer to kill a fly - the fly remains unharmed but the wall is destroyed. We don't need more bad laws, however well intentioned they may be. What is needed is better enforcement. I don't have the solution, however, at the risk of seeking quick and simplistic fixes, in my opinion, what is needed is police and judicial reform involving more appointment of judges, improved investigation techniques and better accountability of law enforcement agencies. It's a lot to ask, but as long as we remain apathetic to a core set of universal human rights, which incidentally are enshrined by the Pakistani constitution, we will never develop into a civil society.