Revival of ATA sunset clause triggers debate

ISLAMABAD:

The government's recent proposal to revive the sunset clause in the Anti-Terrorism Act (ATA) of 1997 has stirred up debate over civil rights and security.

The proposed amendment seeks to empower law enforcement agencies (LEAs) to detain terrorism suspects preemptively for up to three months based on "reasonable suspicion."

Soon after the APS carnage in 2014, the government had introduced the clause relating to preventive detention for inquiry for three months. However, the powers had a sunset clause of two years.

Now, after a decade, the government has once again tabled a bill in the National Assembly, proposing to revive the same powers for the LEAs for the next two years once the bill is enacted.

Pakistan's judicial system is often criticized for its inability to hold terrorists accountable.

Those sitting on treasury benches argue that stronger preemptive measures are necessary to counter terrorism effectively. While the rulers argue that this measure is critical to countering terrorism, critics worry about potential abuses, particularly against political dissidents.

Soon after the bill was tabled, the Human Rights Commission of Pakistan (HRCP) issued a strong statement against the amendment, arguing that it violates citizens' rights to due process and fair trial as enshrined in Pakistan's Constitution.

The HRCP expressed alarm that these powers, if unchecked, could also facilitate the practice of enforced disappearances under the guise of national security.

Observers also note that while security challenges, including a resurgence in militancy, are undeniably real, measures like enhancing the LEA's powers can have repercussions for citizens.

Abdul Moiz Jaferii, a prominent legal analyst, expressed deep concerns about the revival of the clause.

He said there used to be a hesitation on the part of the government as it used to feel a bit reluctant to introduce measures that could be deemed unconstitutional, fearing judicial intervention.

However, with the passage of the 26th amendment, this restraint has waned. "That hesitation is no more there, courtesy the 26th amendment," he said.

Jaferii warned that the revival of the sunset clause could lead to a cascade of restrictive measures targeting fundamental freedoms. He stressed that while the amendment ostensibly aims to combat terrorism, its vague language makes it ripe for misuse.

He said while the LEAs cite "security" as the rationale, the law's ambiguous language poses risks of political weaponization. "This is the first of many," he warned. "You will now increasingly see more and more draconian restrictions upon fundamental freedoms, enacted with impunity," he cautioned.

"It is clearly violative of fundamental rights. It is clearly vague enough to be abused," Jaferii said, "but the government will put it on the books, and then use it as it sees fit." In Jaferii's words, "Welcome to Bilawal's purana Pakistan. Except Pakistan was never this bad when it was a democracy."

A Global Practice, or Potential for Abuse?

On the other hand, Hafiz Ehsaan Ahmad, a seasoned constitutional expert, offered a contrasting perspective, contextualizing the amendment within a broader global framework.

Ahmad noted that countries worldwide have enacted similar detention measures for individuals suspected of heinous crimes and anti-state activities.

Citing examples, he pointed out that the United States allows indefinite detention for terrorism suspects under the National Defense Authorization Act and the Patriot Act.

He said Turkey allows a detention period of seven years. Singapore prescribes up to 20 years for repeated heinous offenses, and countries like Saudi Arabia, the UAE, China, and Egypt have indefinite detention periods in cases of severe offenses.

Ahmad clarified that Article 10 of Pakistan's Constitution permits pre-trial detention, with oversight mechanisms to limit misuse. He emphasized that the proposed three-month detention period is not unusual in Pakistan's legal context as five different laws currently allow the government and law enforcement agencies to detain suspects for three months.

Ahmad argued that the proposed amendment, which extends this to six months, does not contravene human rights, as it would apply specifically to those involved in heinous offenses, terrorist activities, and serious crimes such as rape, ransom, killings, and anti-state actions against armed forces and law enforcement agencies.

While acknowledging the legal framework's global parallels, Ahmad advocated for a more robust approach to counterterrorism legislation in Pakistan.

"Instead of amending the ATA in piecemeal, there's an urgent need for comprehensive legislation, ideally developed in coordination with provincial governments," he recommended.

According to Ahmad, adopting best practices in investigation, prosecution, and court procedures from countries that have effectively tackled terrorism could yield more effective results.

"The conviction rate for these offenses since the promulgation of the ATA has been deplorable," he said, urging systemic reforms to address underlying issues in Pakistan's judicial and law enforcement systems.

Ahmad also suggested the federal government should adopt public awareness measures to clarify that the amendment will strictly apply to terrorism and heinous crimes, dispelling fears of political misuse.

He underscored that public perception plays a significant role in preventing misuse and maintaining trust in law enforcement and judicial institutions.