Published in The News:
Hundreds of people arrested on terrorism charges during the army operations in Swat and other areas remain in custody without being produced in court. This is in violation of Article 10 of the Constitution relating to safeguards against wrongful arrest and detention. The 18th Amendment added Article 10-A to the Constitution, which recognises “the right to fair trial” as a fundamental right of every citizen. At the same time, the authorities’ failure to produce arrested persons before magistrates within 24 hours of the arrest is in violation of Sections 61, 167 and 344 of the Criminal Procedure Code.
But there are problems related to trials under the Anti-Terrorism Law.
Trials of persons accused of terrorist activities are governed by the Anti-Terrorism Act, 1997 (ATA), and the Criminal Procedure Code (CPC). Section 13 of the ATA establishes anti-terrorist courts and Section 14 provides for the qualification of persons who can be appointed presiding officers in these courts. An anti-terrorism court (ATC) has the exclusive jurisdiction to try an offence mentioned in the schedule of the ATA. Under Section 19 (7) of the ATA, after taking cognisance of the case, an ATC must proceed with the trial on a day-to-day basis and is bound to decide the case within seven days. However, trials linger on for months and years without verdict.
The main obstacles in the workings of the ATCs is created by past judgments by the Supreme Court. Through these judgments, the Supreme Court changed the nature of the ATCs from anti-terrorism courts to courts for trials of heinous offences. Cases ranging from child molestation to murder were transferred to ATCs. Anti-terrorism courts are now being used as replacement for regular courts and thus their role overlaps with that of the regular judicial system. This has effectively made ATCs dysfunctional.
In my view, the first measure required is to stop using the ATC mechanism as a parallel judicial system to override and replace the regular courts. ATCs must adhere to the provisions of the Anti-Terrorism Act in letter and spirit and trials in terrorism cases must proceed daily without undue adjournments.
The conviction ratio by ATCs in important cases of terrorism is really low. In the majority of cases, many under-trial prisoners who could otherwise be convicted of terrorism go scot-free due to lack of evidence. Individuals involved in cases such as those related to attempts on the lives of Gen Pervez Musharraf and Shaukat Aziz to the Marriot Hotel attack and the Aabpara bomb blast were acquitted because of lack of direct evidence, on which the courts rightly insist. Lack of direct evidence is usually the result of fearful witnesses refusing to come forward to testify. The ATA Section 21 prescribes a comprehensive procedure for the protection of judges, counsels, public prosecutors and other persons concerned with the court proceedings. However, protection is either not provided, or is inadequate and ineffective.
In the absence of direct evidence the prosecution is then forced to rely on circumstantial evidence. The quality of such evidence is extremely low, with investigators not even trained to collect indirect evidence. This is one reason for many undeserved acquittals.
Under ordinary criminal law, the primary agency responsible for investigation is the local police. Section 19 of the ATA prescribes joint investigation teams consisting of a police officer not below the rank of inspector. Alternatively, the services of an officer of an investigating agency may be enlisted, including one belonging to an intelligence agency, whom the federal or provincial government may nominate. However, my interviews with prosecutors and interrogators show that joint investigation teams are constituted only on occasions, and that it is only the police that file the final investigation report in terrorism cases. In most cases, a joint investigation team is constituted not legally under the ATA but unofficially, or under the directive of some high-profile official. A joint investigation team thus constituted is not recognised under the ATA. Intelligence agencies such as the ISI, Military Intelligence and the Intelligence Bureau carry out investigations on their own and never share information with the police, which lacks resources, authority and training.
This creates a huge vacuum between investigation and prosecution because the prosecution then ceases to have the assistance of actual investigation. This vacuum enormously affects a trial. Police investigators lack scientific skills and resources and modern technology for collection of evidence. The result is that presiding officers, already working under great pressure and fearing for their lives, take the safe option of releasing the accused.
I suggest the following steps:
• The anti-terrorism courts should try cases specifically related to terrorism.
• The Anti-Terrorism Act should be fully adhered to, with daily trials so that the prescribed one-week deadline can be met.
• Joint investigation teams should consist of investigators who probe the incident regardless of whether or not they are affiliated with a given agency.
• Quality training of investigators and introduction of modern technology in the investigation process.
• Provision of effective and credible protection to individuals connected with the cases’ proceedings.
• Presiding officers and prosecutors should be hired on merit and receive continuous training.
While the accused should receive fair trials, actual offenders must receive the punishments they deserve.
The writer is a Lahore-based lawyer and columnist. Email: email@example.com