Legal Terror

Herald
June 1999
By Zaigham Khan

Ignoring the guidelines of the Supreme Court regarding the anti-terrorism law, the government has promulgated an ordinance that may lead to state terrorism

On April 27, terrorism was redefined in Pakistan through a new Anti-Terrorist (Amendment) Ordinance. The new law brings almost all legitimate trade union activity and political protest within its mischief. Under the new law,"... go slows, lock-outs... distributing, publishing or pasting of a handbill or making a graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of (certain) offence(s) ..." fall under the term civil commotion, punishable with seven years rigorous imprisonment or fine or both.

The law which brought the Anti-Terrorist Courts (ATCs) back to life was awaited since February 17, when nine-member bench of the Supreme Court of Pakistan unanimously ruled that the military courts set up to try civilians were unconstitutional and without lawful authority. While rejecting the military courts, the SC had also provided mechanism for speedy trial of the cases relating to terrorism. The recommended mechanism, however, appears to have been ignored altogether in the new law.

Even before sealing the fate of the military courts, the Supreme Court had struck down a number of sections of the Anti-Terrorist Act (ATA) after hearing the case of sectarian terrorist Muharram Ali. It had subsequently asked the government to make the suggested amendments to make the law conform to its judgment. The government complied and the bill was passed by the National Assembly. However, the bill remained pending in the Senate and lapsed in February, as a result of which the ATCs could not function for 72 days till the new ordinance came into force.

It appears that the prime minister himself lost interest in the ATCs primarily because they too failed to deliver the kind of "speedy justice" that he wanted. As far as he was concerned, cases were to be decided "not in days but in hours." This, in fact, was the main reason why he opted for the highly controversial military courts in December 1998, soon after he fell put with his coalition partner, the MQM. These courts were set up under the Armed Forces (Acting in Aid of Civil Power) Ordinance 1998 -- a law which elicited strong reaction from the legal community, political groups and human rights activists. However, once the military courts were struck down, Sharif was left with not option but to return to the ATCs, something which he could not do without making requisite changes.

Interestingly though, while drafting the law, the government not only chose to ignore many of the Supreme Court's instructions but also inserted a section which was part of the ordinance that had created military courts. While the military courts were still operating, no one had paid any attention to the section which has now been made a part of the amended law. This was probably because the defence lawyers were concentrating almost exclusively on the principle of allowing military courts to try "civilian" piece of legislation, everyone quickly realized the power it bestowed upon the authorities to accuse anyone of fomenting civil commotion.

The law provides that any act intended to create civil commotion can be tried in an ATC. Civil commotion is defined as "creation of internal disturbances in violation of law, or intended to violate law, commencement or continuation of illegal strike, go slows, lock outs, vehicle snatching or lifting, damage to or destruction of state or private property, random firing to create panic, charging bhatta (extortion money), acts of criminal trespass, distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to security of law and order or to incite the commission of an offence punishable under Chapter 5 of the Pakistan Penal Code."

According to leading legal experts, the clause is so loosely drafted that it allows state functionaries to subjectively decide important terms such as "internal disturbance" and the "intention" to violate the law. "It brings all legitimate political and trade union activity into the definition of civil commotion and thus invades the fundamental rights of the citizens," says Abed Hasan Manto, President of the Supreme Court Bar Association.

For political workers, the inclusion of such a clause in a law primarily aimed at combating terrorism is ominous. Since it empowers the executive to determine the intent behind such acts as wall-chalking and graffiti, normal and legitimate expression of political protest can invite harsh penalties. It leaves more than ample scope for the government to target political dissidents in the name of combating terrorism. "It is a black law aimed at crushing the opposition and establishing one-party rule in the country, "says former president Farooq Leghari.

Even before the anti-terrorism law was amended, cases were being sent arbitrarily to the ATCs. In Lahore for example, a person was booked for terrorism only because he drove his vehicle on an under-construction road defying instructions from FWO officials. Such acts made litigants extremely wary of the ATCs instead of inspiring them to seek "speedy" justice through these courts. "People have more trust in the district and sessions courts than the ATC, established to curb terrorism," observed the Lahore High Court, while hearing an appeal last year.

Although the law has been opposed unanimously by opposition parties and human rights organisations, no one has yet come forward to challenge it in the Supreme Court, a recourse which could invoke judicial intervention and can once again lock the government in a row with the higher judiciary. The ordinance can also die a natural death, like the earlier law, if it is not converted into an act of parliament within the four-month period prescribed in the constitution. If not passed by the parliament, the law will lapse on August 27, 1999.