Loopholes in the law

M. ZaidiNovember 24, 2012

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THE Anti-Terrorist Act 1997(ATA) was amended by many ordinances, but since ordinances are a
temporary phenomenon, with their lapsing the same old ATA remains with its many flaws.

There is the issue of the ATA clashing with other laws. For instance, Section 2d of the ATA deals with who
shall be dealt with as a child, but the Juvenile Justice System Ordinance (JJSO) 2000 also addresses this. Most
suicide bombers are children and if caught are treated according to the ATA. Under the JJSO they are entitled
to more lenient treatment. While legally the ATA overrides the latter because of its overarching effect, the
problem of how to deal with juveniles remains.

This confusion needs to be resolved. The JJSO needs to be repealed or amended so it does not clash with the
ATA, or the latter needs further amendments to clarify the position of minors vis-à-vis terrorist trials.

The ATA has no clause for punishment in absentia. If an accused is absconding, the only procedure that can be
initiated is under Section 512 of the Criminal Procedure Code (CrPC), which declares the person an offender
evading the law.

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This emboldens many accused people, as much implicated in crime as others who have been arrested. The
absconder actually benefits since the actual trial does not start until he is apprehended.

A procedure for trial in absentia should therefore be introduced in the ATA. It might also be useful to revisit
the CrPC’s provisions for dormant trials, in which trials are suspended until all offenders have been brought to
face justice.

Section 7 is the lynchpin of the ATA since it apportions liability for terrorism. It has been reported that this
section is not included, though required, by the police in many cases. Paradoxically, it is included in other
cases, even those of a civil nature, to magnify the scale of the crime; ostensibly in many cases this is done on a
mala fide basis.

It is incredible that this section can be added by policemen, sometimes at whim — although legal opinions are
sometimes sought from the district superintendent police (legal) or the district prosecutors. Thus, it is
imperative that this legal prerogative have oversight mechanisms. This will require a legislative change in the
ATA.

In theory, in some instances cases are sent to the provincial home departments to get approval of the
application of the ATA. This is not a fully satisfactory procedure, as the home departments may just endorse
the section without any legal oversight.

A better step would be for police not to be allowed to apply sections of the ATA until a written approval has
been sought from the concerned or designated prosecutor.
The anti-terrorism courts operate under the legal umbrella of the ATA. The prosecution has to prove its case
beyond any reasonable doubt. In many cases, even in which strong evidence has been adduced, the courts have
not entertained the prosecution’s versions as the evidence has not been beyond a reasonable shadow of doubt.

This practice is followed due to the legal rule that the benefit of any reasonable doubt created in the
prosecution’s case is to be extended to the accused. This is described as the golden rule and is essentially a rule
of prudence, which cannot be ignored while dispensing justice in accordance with the law.

Enjoying the benefit of doubt is the legal right of the accused, and this is not extended to him as a favour or a
concession but as a right. However, this can sometimes undermine even well-presented cases.

For instance, in the case of the Tehrik-i-Taliban Pakistan’s attack on the Manawan Police Academy, an empty-
handed person was arrested at the spot and two witnesses were produced as direct evidence, which specifically
attributed to him the role of throwing hand-grenades.

This should have been enough on which to base a conviction, yet the defence version found support in lapses
of investigation. From there on the balance started tilting in favour of the accused.

The trial court came to the conclusion that there was reasonable shadow of doubt regarding the guilt of the
accused, and exercised its discretion in his favour.

In short, there were two possible inferences, and the one favouring the accused was given preference since the
prosecution had not proved their case beyond a shadow of doubt. This is notwithstanding the fact that it had a
strong case.

Undertaking a critical appraisal of the ATA, it seems clear that the burden of proof is on the prosecution.
Hence the internationally followed maxim stands true in the anti-terrorism courts that the accused is innocent
until proven guilty.

However, comparing the ATA (which is a special law with special courts and judges) with other special laws
in Pakistan such as the Control of Narcotic Substances Act, the anti-corruption and accountability legislation
etc, it stands out that in all the latter, the burden of proof is on the accused.

The ATA is a special law dealing with the special situation of terrorism; it seems unfair that other special laws
would have the privilege of putting the burden of proof on the accused, while in the ATA it is on the
prosecution.

Perhaps there was the underlying fear in the minds of the lawmakers that the police would abuse this law
(which it undoubtedly does). However, this does not detract from the fact that terrorism is one of the principal
threats facing Pakistan today, and legislation has to necessarily be the most effective weapon in the arsenal of
the criminal justice system.

Lawmakers must apply their minds judiciously in drafting or amending laws which deal with terrorism, since
the latter has to always be fought through the law in civilised societies. The trick will be to balance the surety
of punishment against regard for civil liberties and human rights. This will not be an easy job, but it has to be
done now.

The writer is a security analyst.