Law to fight terror

ON June 23, the president signed into law the Actions in Aid of Civil Power — 2011 Regulations Bill for Fata / Pata, empowering the Khyber Pakhtunkhwa governor to direct armed forces to incapacitate miscreants by interning them during operations carried out in aid of civil power.

Thereafter, they must be handed over to the nearest law-enforcement agencies to be brought to justice.
This, it seems, was the only option the federal government had for justifying the retention of miscreants and terrorists captured during armed actions — people who were attempting to assert unlawful control over the territories of Pakistan and, if released, could have launched another cycle of terrorist strikes, crossed the Durand Line or fled abroad by falsifying travel documents. The regulations also provide for appeal by the internee and his relatives against his internment order.
Against the backdrop of the Kharotabad and Sarfraz Shah incidents, it seems the president, through the new regulations, also directed both the civilian (such as the Rangers and the Frontier Corps) and regular armed forces to exercise precautions before using force. Any officer found guilty of not doing so shall face administrative and criminal penalties. A provision prohibiting torture in the regulations can be argued to be a measure complying with the United Nations Convention Against Torture (CAT), which Pakistan has recently ratified.
The regulations have a territorial limitation, as they apply only in Fata and Pata. But they do respond to the need for a permanent federal statute to regulate the armed forces whenever they are called upon in aid of civil power anywhere in Pakistan and to equip them with suitable powers, under civilian supervision, to contain or incapacitate terrorists. They will switch on when the civilian government requisitions the army and switch off when forces are de-requisitioned.
The regulations should, however, be tabled in parliament and properly debated. They should provide `do`s and don`ts` for the armed forces, Rangers, FC etc. The proposed federal law should also fully regulate the conduct of the armed forces and their terms of deployment. At the moment, the available law contemplates the calling out of the armed forces to deal with one-off instances of unlawful assembly or rioting. This is far behind the challenges faced by the state of Pakistan. Although each of the armed forces is bound by its own laws, none of these enactments provide legislative guidelines for the conduct of military action, manoeuvres and tactics inside populated areas.
Parliament therefore needs to put these forces on notice about limitations and restrictions on their conduct and provide a clear disclosure of their powers and functions through a federal enactment.
The new regulations should have also ideally addressed issues such as compensation for victims and the management of those displaced during military operations. In fact, the governor still has the opportunity to issue rules for these purposes under these very regulations.
Another issue is that of the legal powers of intelligence agencies, which play a crucial role in gathering intelligence but also allegedly grossly abuse their powers by unlawfully detaining persons. The Missing Persons Commission headed by Justice Javed Iqbal has recommended the creation of a law that would enable intelligence agencies to retain a suspect but at the same time account for his retention to his family. If the new regulations are such a law, the agencies will need to volunteer information of all detainees to the governor within 120 days and also provide information to the Missing Persons Commission.
The regulations make it mandatory to carry out psychological counselling of those who are interned; this is unique as a legal compulsion and also important. It effectively translates into a de-radicalisation process. The government hardly has any organised capacity to undertake de-radicalisation or counselling as an institutional arrangement. In fact, this is an opportunity to seriously contemplate a comprehensive strategy that could be replicated for detainees in settled areas as well. It would be a success story if, out of these 2000-plus detainees (now internees), the number of prosecutions are minimised, and this will happen only if the de-radicalisation programme succeeds fully.
The regulations also provide a supporting mechanism to collect and preserve evidence against those who are eventually to be prosecuted and are unwilling to renew their loyalties to the constitution and state of Pakistan. However, they do not provide for prosecution and are limited to internment, the creation of new offences and the collection of evidence. The government is likely to lean on the Anti-Terrorism Act as a law for conducting prosecutions. The other option is to try the offender under the normal courts. In either case it would be prudent to seek prior approval of the Khyber Pakhtunkhwa chief justice for the appointment of judges. The third option is to create a stand-alone judicial forum or special courts (through similarly promulgated legislation) to be appointed by the chief justice.
The ATA has been criticised as a badly structured law developed in the context of sectarian violence in the 1990s and thus not inherently suited to prosecute those who, by attempting to assert unlawful control over the territory of Pakistan and use terrorism as a tool, fall in a league of their own. In this regard certain amendments are pending before the Senate and it would be helpful if their approval is completed on a fast-track basis. Without the said amendments and proper investigation, the existing rate of acquittal will continue to embarrass the government and expose an inability to creatively enact legislation to fight terror.
The writer is an advocate of the Supreme Court of Pakistan and president, Research Society of International Law Pakistan.
ahmersoofi@hotmail.com 
Source: Dawn News