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Thursday, 17 September 2009

Militancy and the law

Dawn Editorial
Thursday, 17 Sep, 2009
It is essential that militants be prosecuted successfully and not walk free. —Reuters Photo

ACCORDING to a report in this paper, the government is preparing to amend anti-terrorism laws to eliminate loopholes that may allow terrorists and militants to walk free on technicalities and/or lack of evidence.

Operation Rah-i-Rast in Swat may have been the catalyst for the impending changes, but there is a general problem with the law and its implementation is found wanting when it comes to punishing militants. Undoubtedly there is a social and political element in this debate, for it is demoralising and frightening for the people when the state seems unable to prosecute and punish those involved in terrorism. Yet laws must not be tinkered with in haste and every effort should be made to ensure that changes are thoroughly thought out and well designed. At the moment though it is not clear if the proposed amendments to the Anti-Terrorism Act 1997 meet those criteria.

Firstly, the primary stamping ground of the militants lies outside Pakistan proper in Fata and Pata, areas where the applicability of the 1997 act is not clear. And in the case of Malakand specifically, the latest Nizam-i-Adl regulation may have displaced anti-terrorism laws. Secondly, even if the militants are captured elsewhere and then moved within the jurisdiction of anti-terrorism courts, that very process may create legal loopholes that defence lawyers could exploit. For example, state prosecutors would have to rely on evidence gathered by the security forces in a war zone rather than on police investigators who are trained in such matters. Thirdly, the proposed reversal of the burden of proof, so that militants under trial are presumed guilty and have to prove their innocence, is unlikely to pass muster with the courts. When such ‘special laws’ have been enacted in the past, the courts have found ways to either water down the reversal of the burden of proof or ignore it altogether. This makes sense, for whatever the urgency in seeing that militants are punished there is little doubt that the country’s judicial system does accidentally, and sometimes wilfully, net the innocent.

We suggest therefore that the government seek the input of legal and constitutional experts and thoroughly debate the proposed changes before implementing them. There is also the option of directly referring the matter to the Supreme Court under its advisory jurisdiction set out in Article 186 of the constitution. We remain mindful that in the bigger picture it is essential that militants be prosecuted successfully and not walk free. Whatever the balance that needs to be struck, it must be done sooner rather than later.

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