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An Appraisal of Pakistan's Anti-Terrorism

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An Appraisal of Pakistan's Anti-Terrorism UNITED STATES INSTITUTE OF PEACE www.usip.org SPECIAL REPORT 2301 Constitution Ave., NW • Washington, DC 20037 • 202.457.1700 • fax 202.429.6063 ABOUT THE REPORT Tariq Parvez and Mehwish Rani This report assesses Pakistan’s Anti-Terrorism Act (ATA), the country’s main legislation governing the prosecution of terrorism. The law’s loose definition of terrorism has resulted in an overly broad application of the ATA to a host of criminal cases, clogging up the special court system the An Appraisal of Pakistan’s ATA set up. At the same time, resources and training to implement the ATA’s provisions are limited. This report is based on discussions in round table conferences, two with senior Pakistani police officers and one with lawyers, former Anti-Terrorism Act judges, and academia; a study of the judgments of the Supreme Court of Pakistan and ATCs having a bearing on the ATA; and research carried out on the subject in Pakistan. Summary ABOUT THE AUTHORS • The Anti-Terrorism Act of 1997 lays down the basic legal framework for counterterrorism Tariq Parvez is a former police officer who retired as director prosecutions in Pakistan. Despite the law’s passage, the criminal justice system has seen low general of the Federal Investigation Agency (FIA) and later conviction rates and delayed cases, and it offers a very weak deterrence against terrorism. served as national coordinator of Pakistan’s National Counter Terrorism Authority (NACTA) Pakistan. Mehwish Rani has • The lengthy delays and high number of acquittals in terrorism cases are due to a number done her M.Phil in psychology and is involved in research of factors. The definition of terrorism under the act is too broad. Procedural issues, among on counterterrorism and countering violent extremism. law enforcement officers and among police and intelligence agencies, also contribute to the law’s ineffectiveness. • Unless urgent measures are taken, public confidence in the law is likely to further erode, opening the possibility of greater reliance on military instead of civilian institutions to control terrorism. • A holistic approach is needed to improve the ATA, based on four equally important dimensions: amending the language of the law, streamlining its application, sensitizing the courts to the provisions of the law, and strengthening the infrastructure responsible for its implementation. Introduction Pakistan is today one of the countries most affected by terrorism in the world.1 It began experiencing terrorism on a sustained basis in 1990, in the form of sectarian killings. In the © 2015 by the United States Institute of Peace. All rights reserved. past twenty-five years more than fifty thousand people have lost their lives to terrorists, the national economy has incurred losses estimated in the billions of dollars, and the social SPECIAL REPORT 377 AUGUST 2015 fabric of Pakistan’s society has been exposed to immense stress.2 On September 20, 2008, a suicide bomber in a vehicle laden with approximately eight CONTENTS hundred kilograms of explosives blew himself up at the entrance of the Marriott Hotel Islam- The Anti-Terrorism Act and Anti-Terrorism Courts 2 abad, killing fifty-four people (including fifteen foreigners) and maiming 250. An intensive Hurdles to Implementing the ATA 5 police investigation led to the arrest of four people accused of involvement in the attack. Recommendations 7 On May 5, 2010, however, the antiterrorist court (ATC) hearing the case acquitted all four ABOUT THE INSTITUTE accused for lack of admissible evidence. This acquittal is cause for serious concern. More The United States Institute of Peace is an independent, alarming is that large-scale acquittals by courts in terrorism cases is the norm, symptomatic nonpartisan institution established and funded by Congress. of a grave systemic weakness in the criminal justice system of Pakistan, particularly in deal- Its goals are to help prevent and resolve violent conflicts, ing with terrorism cases. A 2010 U.S. State Department report termed Pakistan’s antiterror promote postconflict peacebuilding, and increase conflict legal system as “almost incapable of prosecuting suspected terrorists.”3 management tools, capacity, and intellectual capital worldwide. The Institute does this by empowering others Pakistan’s abysmally low conviction rates shape the perception that even if terrorists with knowledge, skills, and resources, as well as by its direct are caught, the probability of getting punished is very remote. According to the Punjab involvement in conflict zones around the globe. Prosecutor General, during 2014, ATCs heard 785 cases of terrorism in the province, result- ing in 196 convinctions4—an acquittal rate of roughly 75 percent. This percentage is cor- 5 BOarD OF DIRECTORS roborated by U.S. State Department reporting. The overburdening of the criminal justice Stephen J. Hadley, (Chair), Principal, RiceHadleyGates, LLC, system generally, and ATCs particularly, leads to abnormally long periods of time taken by Washington, DC • George E. Moose (Vice Chair), Adjunct police, prosecution, and completion of terrorism cases in ATCs. This delay in justice dilutes Professor of Practice, The George Washington University, Wash- the impact of the punishment and is likely to lead to witnesses recanting their testimonies, ington, DC • Judy Ansley, Former Assistant to the President and resulting in large-scale acquittals.6 Deputy National Security Advisor under George W. Bush, Wash- There are many areas of weakness in the different elements of Pakistan’s criminal justice ington, DC • Eric Edelman, Hertog Distinguished Practitioner in Residence, Johns Hopkins School of Advanced International system, from police to prisons to the relevant antiterrorism legislation. This paper focuses Studies, Washington, DC • Joseph Eldridge, University Chaplain on identifying the major areas of concern in the Anti-Terrorism Act (1997), or ATA, and sug- and Senior Adjunct Professorial Lecturer, School of International gests measures to enhance its efficacy in dealing with the threat of terrorism in Pakistan. Service, American University, Washington, DC • Kerry Kennedy, The first part of this paper examines problems arising from the language of the law, includ- President, Robert F. Kennedy Center for Justice and Human ing its overly broad definitions of terrorism. The second looks at the challenges facing the Rights, Washington, DC • Ikram U. Khan, President, Quality Care police and judiciary in implementing the law in practice. Consultants, LLC., Las Vegas, NV • Stephen D. Krasner, Graham H. Stuart Professor of International Relations at Stanford University, Palo Alto, CA • John A. Lancaster, Former Executive Director, International Council on Independent Living, Potsdam, The Anti-Terrorism Act and Anti-Terrorism Courts NY • Jeremy A. Rabkin, Professor of Law, George Mason Over the past decade, Pakistan has followed a two-pronged approach in response to the University, Fairfax, VA • J. Robinson West, Chairman, PFC Energy, Washington, DC • Nancy Zirkin, Executive Vice growing terrorist threat. The military is the lead organization for dealing with the insurgency President, Leadership Conference on Civil and in the Federally Administered Tribal Areas (FATA). It has conducted a number of military Human Rights, Washington, DC operations there against insurgents. Presently, a full-scale military operation called Zarb-i- Azb is going on in North Waziristan and Khyber agencies, freeing more and more areas from insurgent control. While the ATA is applicable to the entire country, ATCs have not been set MEMBERS EX OFFICIO John Kerry, Secretary of State • Ashton Carter, Secretary of up in the FATA because of the warlike conditions there. Defense • Gregg F. Martin, Major General, U.S. Army; President, In the remaining parts of the country, combating terrorism is the responsibility of law National Defense University • Nancy Lindborg, President, enforcement, and a number of special laws have been enacted. The basic law, however, is United States Institute of Peace (nonvoting) the ATA. Enacted by parliament in 1997, as of February 2015, the law has been amended seventeen times to adapt to the changing nature of the terrorist threat. Other special laws have supplemented the ATA, such as the Investigation for Fair Trial Act (2013) and Protec- tion of Pakistan Act (2014), to respond to some of the other areas of the terrorist threat not covered by the ATA. A constitutional amendment was passed in January 2015 to set up special military courts for dealing with terrorism cases for a period of two years. The ATA, however, lays down the basic legal framework for Pakistan’s national counter- terrorism effort by defining offences of terrorism and terrorist acts. It also provides for the establishment of special courts to try terrorism cases and gives timelines for the finalization of investigation and trial of cases to ensure speedy disposal. Section 19 of the ATA specifies that police must finalize terrorist case investigations within thirty days, and requires ATCs The views expressed in this report do not necessarily to hear such cases on a daily basis, finalizing judgments within seven days.7 The Supreme reflect the views of the United States Institute of Peace, Court of Pakistan, through a judgment in 1998, disagreed with the original ATA design to which does not advocate specific policy positions. develop a parallel judicial system for trial of terrorism cases.8 The judgment laid down three To request permission to photocopy or reprint materials,
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