Anti-Terrorism Bill 2010

Terrorism, as a menace has plagued Pakistan for more than a decade and the state has repeatedly made attempts to curb it through stringent actions and policies. The Anti-Terrorism Bill 2010 constitutes Pakistans latest endeavour at restricting terrorist activities and it proposes significant amendments to the original anti-terrorism legislation, the Anti-Terrorism Act (ATA) of 1997. Pre-1997, Pakistan had been suffering from considerable domestic and sectarian violence. The existing legal system had been unable to control such violence and the country was in urgent need of a comprehensive anti-terrorism regime. The ATA 1997, aimed to act as a deterrent for would-be terrorists not only by offering a wide definition of terrorism, but also by providing a speedy system of dealing with terrorism cases through the creation of special anti-terrorism courts. However, the ATA 1997 turned out to be too rigid and was subjected to a great deal of criticism. Amnesty International believed it to be seriously flawed and the Supreme Court of Pakistan in the case of Mehram Ali versus Federation of Pakistan (1998) declared it to be unconstitutional, as a result of which an amendment to the ATA 1997 became necessary. The 2010 Bill itself seeks significant amendments in 25 sections of the ATA 1997 and even though it aims to cure the deficiencies present in the current anti-terrorism law, it seems to be flawed. If the bill is promulgated, it will definitely result in serious human rights violations. Under the proposed bill, the federal government may authorise any person to intercept calls and messages, and trace calls through any telecommunication system. This provision significantly breaches a fundamental human right, that is, the right to privacy. Article 12 of the 1948 Universal Declaration of Human Rights (UDHR) declares that no one shall be subjected to arbitrary interference with hisprivacy or correspondence. This right is similarly protected under Article 17 of the 1976 International Covenant on Civil and Political Rights (ICCPR) and Article 8 of the 1953 European Convention on Human Rights (ECHR). Historically, there have been instances where such laws have been abused; therefore, additional safeguards will have to be provided in order for this legislation to be consistent with international law. Such safeguards can be found in the interception laws of other countries. For example, in the United Kingdom (UK), under the Regulation of Investigatory Powers Act (RIP) 2000, interception is permissible only where it can be justified by virtue of an interception warrant duly signed or by obtaining informed consent from every party to the intercepted communication. Even these comprehensive rules have been held by the European Court of Justice (ECJ) to be insufficient in preventing unlawful interferences of privacy rights. As compared to the sophisticated laws governing interception in such countries, the amendment proposed by the new bill to the interception law in Pakistan, undoubtedly, derogates from the right to privacy of correspondence. The bill also stipulates a detention period of 90 days for a person suspected of terrorism, which will be unchallengeable in any court. Moreover, the detainee will have to be produced in camera before an anti-terrorism court within 24 hours of his arrest. This encroaches upon two fundamental international norms, namely, the human right to liberty and security of person and the right to a fair trial enshrined under the UDHR, the ECHR and the ICCPR. Under UKs Terrorism Act 2006, the maximum period of detention without charge is 28 days and even for this, enforcement authorities have to follow a strictly regulated procedure. Once a person has been arrested by the police, he may be detained without charge for an initial period of 48 hours. Additional periods of detention, in seven-day increments, may then be granted by magistrates, up to a total of 14 days. Extending thedetention from 14 to 28 days may then be granted by a High Court judge. In 2008, a bill extending the pre-charge detention period to 42 days was rejected by the UK Parliament and was criticised as being in breach of the ECHR. Another provision of the bill states that a confessional statement made by a terrorism suspect before the district police officer would be admissible as evidence in a court of law. However, in Pakistan, the district police can easily obtain such statements from the suspects through their well-known recourse to torture; thus, this provision is likely to contravene with Article 2 of the 1987 Convention against Torture (CAT) which expressly prohibits torture. An even more disturbing feature of the bill is, if someone is found in possession of an explosive substance, it would be presumed, unless proven otherwise, that the explosive substance was intended for terrorism purposes. This infringes upon one of the most essential principles of a judicial system, that is, the presumption of innocence unless proven guilty. It not only seriously violates international law, but is also unconstitutional since it undermines the judicial system of the state. Hence, in order to prevent the new bill from being abused, it must be amended and brought in line with international norms and with the 1973 Constitution of Pakistan. In its present form, it is likely that the bill will follow the fate of its precursors and if enacted, it will not improve the condition of terrorist violence in the country, but will further deteriorate them. The writer is associated with the Research Society of International Law. Email: info@rsilpak.org

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