Tomorrow might be too late
The empire of law is built upon principles of national justice, as well as ideals of substantive and procedural due process of law. It entails that the accused is the ‘favorite child of law’ – that he/she be treated as innocent until ‘proven’ guilty. And in the interest of protecting the security and person of every accused – from wrongful conviction and punishment under an (inevitably) imperfect justice system – vastly different standards have been established for the ‘prosecution’, as opposed to the ‘defence’, in criminal law. As per our domestic as well as international jurisprudence, the prosecution must establish their case ‘beyond reasonable doubt’, after which the defence need only demonstrate ‘on a balance of probabilities’ that the accused is innocent. And in this way, the embrace of the criminal justice system cuddles the accused, protecting it from punishment, to the fullest extent permissible.
This standard of justice in criminal law – which ensures that personal freedom of an individual trumps the possible nefariousness of a stringent law – makes sense in regards to ‘regular’ offences. However, as is evident from the carnage of violence on the streets of Pakistan, and the subsequent lack of conviction of the culprits, it is perhaps time to employ a different standard for prosecution and conviction in regards to offences relating to terrorism.
To this end, Pakistan’s Anti-Terrorism Act (ATA) of 1997 (which has barely ever resulted in meaningful conviction of suspected terrorists) must be reassessed to effectively counter the growing menace of violence. In its present form, the law, as applied by the Anti-Terrorism as well as the superior Courts, requires that the prosecution (through the investigation) meet stringent evidentiary requirements including, inter alia, eyewitness accounts, corroborating testimonies and specific recoveries (of weapons) from the person of the accused. As can be expected, such evidence – specifically eyewitness accounts – are virtually impossible to gather for offences of terrorism (how do you find an eyewitness of a suicide attack?).
And even when sufficient evidence and testimony is available for the prosecution of these heinous offences, convincing witnesses to publicly appear before courts of law, with ocular accounts, is impossible in a society where such witnesses can subsequently become the target of terrorism.
To rectify some of the deficiencies of our Anti-Terrorism regime, after much deliberation by the federal and provincial governments on Thursday President Mamnoon Hussain on the advice of the prime minister signed an ordinance that makes significant headway in the project of defeating terrorism through the power and prestige of law. This new ordinance makes numerous amendments to the ATA, specifically making the following major ‘improvements’: 1) it allows the security personnel to open preemptive fire upon suspected terrorists “after forming reasonable apprehension that death, grievous hurt or destruction of property may be caused” otherwise; 2) it permits security agencies to keep terrorist suspects in “preventive detention” for a period of up to 90 days, during which time the investigation (by police, or a joint investigation team) is to be completed; 3) it stipulates that the court seized of the matter shall conduct trial on a ‘day-to-day’ basis, and ‘decide case within seven days’, and adjournments shall be met with ‘exemplary costs’; 4) it attempts to ensure a ‘secure’ trial by making allowance for ‘screens’ to protect identity of participants, permitting trials through video-link or within the jail premises, instituting ‘witness protection programmes’, and blocking cell-phone signals in jail premises; 5) it introduces an incentive programme for investigation officers ‘who conduct successful investigations’; 6) it allows for cases and investigations to be transferred to different geographic areas in Pakistan, in an attempt to diffuse pressure of local militant outfits; and 7) it stipulates that electronic and forensic evidence alone (without the traditional eyewitness account) can be sufficient for the prosecution of terrorism offences.
These are all bold measures (even though forged out of necessity of circumstances, instead of concerted political will of the governing parties). And as such, the government deserves credit for taking a first step towards reforming our anti-terrorism regime. But let us not mistake it for much more – this ordinance is just a first step. A more deliberate and comprehensive approach to revamping our counter-terrorism strategy will have to follow soon, incorporating a vast area of reform including the police structure, the investigation process, anonymous testimony and a centralized intelligence coordination effort.
More importantly, however, it is paramount to realize that structural and legislative reform is only the mechanical part of ensuring a stringent anti-terrorism regime. The substantive, and therefore more critical, part of prosecuting and convicting terrorism suspects entails a reform of the judicial philosophy surrounding terrorism cases. No matter how well or sensible the letter of the law might be, in practice it is the judicial application of the law that is either going to result in convictions or acquittals and in arrests or bails.
As the nation clamours for peace and security, the judiciary must begin considering the idea that the traditional contours of criminal law – requiring insurmountable testimony – cannot be the modern standard for trying terrorists. That it is time that the principles of common law go through their next iteration of evolution to grapple with the appalling realities of mass targeted murder. That DNA samples, CCTV footage, forensic evidence, are not modern vices aimed at destroying the Islamic or common-law principles of evidence. That against a faceless enemy that answers plurality with violence, circumstantial evidence is sometimes all that the law enforcement agencies can produce (or that the society can muster the courage to voice).
And if we, as a nation, are to win this fight against extremism through the light of laws, instead of the menace of our weapons, then judiciary will have to play the central role in upholding the spirit of our laws, above the technicalities of our drafting.
The truth, let us not fool ourselves, is as simple as it is inescapable: how we address the issue of countering terrorism and extremism in our society will determine the destiny of Pakistan. This is the question for which history will judge our nation-state. It is the one thing – above all else – that we will have to answer to our children, and to their children, and to the generations after them. And in case we fail, no avalanche of excuses, couched in apologetic expressions of weak application of law or insufficient evidence, will justify our lack of resolve.
The reformed Anti-Terrorism laws, along with a shifting of our prosecutorial and judicial philosophy, must happen today. Tomorrow might be too late.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @Ch_SaadRasool