Terrorism as per schedule

How terror laws are being used to protect terrorists

Terrorism as per schedule
On Monday, the Counter Terrorism Department (CTD) of Punjab raided the offices of Tehreek-e-Jadid in Rabwah and arrested four people. An FIR was registered against nine individuals on charges of publishing material to incite hatred.

Hate speech is and has always been a matter of grave concern in the Indian Subcontinent. Pre-partition India saw several bloody riots on communal grounds stirred through pamphlets and speeches aimed at inciting hatred. It is not surprising that at the time of Independence, three laws, Sections 99-A, 153-A and 295-A already existed in the Penal Code and, among other things, give the State the power to forfeit and seize hate literature and criminalize any act which creates hatred and ill will on religious and sectarian grounds or insults the religious beliefs of any class of citizens with the intent to cause outrage.

Despite these laws, Pakistan has failed to curb hate speech and as a result has lost thousands of lives to acts of terrorism inspired by the ideology of exclusion and hatred, which has condemned certain religious groups and sects to death. However, many would argue that impediments to cracking down on this were mostly political and not legal in nature.

Pakistan, which has yet to show a commitment to restricting hate speech, has passed arguably the strongest legislation, the Anti-Terrorism Act 1997 (ATA) and the Protection of Pakistan Act 2014 (POPA). These laws can be described as ‘strongest’ not for how holistic they are but in terms of the arbitrary powers they give the State. Parliament even amended the Constitution last year, adding further provisions to fight terror. All of this resulted in a legal anomaly. But all means were argued, allowed and tolerated with the repetitive promise that terrorism would be rooted out in the end.

Between January 2015 and July 2016, before POPA lapsed, Pakistan was perhaps the only legal system in the world with four parallel courts with separate and exclusive jurisdictions working simultaneously. These were the ordinary courts, the Anti-Terrorism Courts established under the ATA, the Special Courts under POPA and the Military Courts established under the 21st Amendment. The latter three were all formed to take terrorists and militants to task and the latter two even barred access of the public to the proceedings of the cases before them.

Furthermore, the ATA broadly defines the word “terrorism”. This includes incitement of hatred and “contempt” on religious, sectarian and ethnic grounds in Section 6(2)(f). The publication or dissemination of any material by digital means or otherwise is a crime if it incites hatred or glorifies a terrorist or act of terrorism or gives projection to an organization proscribed or one placed under observation under the Act (Section 11W). In 2012, the then Chief Justice of Pakistan, Iftikhar Chaudhry had ordered the print and electronic media to ensure that its coverage of terror attacks was done in accordance with provisions of the ATA and did not amount to the projection of terrorists and terror outfits. POPA also included hate crimes against ethnic, religious, political groups or minorities in its scheduled offences.

Maulana Mohammed Ahmad Ludhianvi
Maulana Mohammed Ahmad Ludhianvi

Moreover, internationally recognized standards of human rights were also ignored as ATA allows confession given before the police as admissible evidence in court. POPA also shifted the burden of proof from the prosecution to the accused i.e. so you were presumed guilty unless proven otherwise. Additionally, schedules were created under the ATA to list proscribed organizations and individuals through which even a person’s fundamental rights such as the right to speech and freedom of movement could be curtailed if he or she were even suspected of being involved in terrorist and sectarian activities.

In addition to these laws, the State also drafted a policy called the National Action Plan (NAP) which the government uses as a political tool to answer critics who question its  sense of direction and commitment in tackling terrorism. On paper, Pakistan appears to be a country with zero tolerance for terrorists and any material whether written or spoken which furthers their cause.

The government could cite the CTD raid in Rabwah as an example of its commitment made under NAP. However, on at least five occasions in the past twelve months, actions of the representatives of the State have cast serious doubts over NAP. Consider:

In December 2015, the Federal Minister for Interior, Chaudhary Nisar, claimed on the floor on the National Assembly and the Senate that no evidence existed against Abdul Aziz of Lal Masjid which would warrant his arrest. This was despite the fact that not only had Aziz been named an absconder in a pending case but a case had also been registered against Aziz under Section 295-A for spreading hate speech against another sect at a rally organized by the Sipah-e-Sahaba (SSP), a proscribed organization under the ATA, in Islamabad in October 2014.

Section 295-A is not a regular section of the PPC. It covers actions which insult religious beliefs of a group. However, the same thing is considered a crime against the State as opposed to a crime against an individual, according to Section 196 of the PPC. This means that for a court to take cognizance of the matter, the complaint has to be filed by the provincial or federal government as opposed to members of the group whose religious beliefs have been insulted. This means that the State enjoys complete monopoly over the application of the section and any action taken under it. Since only the State is allowed to be a complainant, the actual aggrieved body being the religious group in question cannot interfere in the proceedings.

This is why not much was achieved in court when Aziz’s case was brought out of 15 months of hibernation after the minister was criticised for his comments by the media, civil society activists and fellow parliamentarians. The complainant in the case, which was the then SHO of Aabpara Police Station as a representative of the federal government, retracted his statement and the police requested the court to drop Aziz’s name from the FIR which resulted in Aziz’s acquittal.

Interestingly, in 2015, the Gilgit-Baltistan chief court observed that in cases of offences against the State, it is up to the State to determine whether the offence should be tried in court or the trial should be suppressed in the interest of the people and administration. In Aziz’s case, the State chose to suppress. It cannot be said with certainty whose interest it kept in view while making this decision.

In February 2016, the Minister of State for Religion, Pir Muhammad Amin ul Hasnat Shah, in a letter addressed to his followers, declared Mumtaz Qadri a martyr after news of his execution was confirmed. Qadri was a convicted terrorist by the Supreme Court of Pakistan, however, this did not stop the State minister from glorifying him and his action in violation of the ATA. Shah continues to sit as a member of the National Assembly and still holds office as a State Minister.

In July 2016, POPA lapsed. Not a single hearing took place under this ambitious law for the first 20 months of its enforcement. Only in Punjab, of the 67 cases registered under POPA, challans were filed in only 36 cases. Not only did the cases registered under POPA move extremely slowly, Parliament did not bother debating the fate of the cases if POPA lapsed before their trials concluded. As a result, at the time POPA lapsed 31 cases were pending decision. Parliament discussed the issue in September 2015 as an afterthought, transferring all pending cases to the Anti-Terrorism Courts. The State’s attitude towards cases registered under POPA was not reflective of the tall claims it made under NAP.

In November 2016, a sitting Senator Sajid Mir who is also the Ameer of the Markazi Jamiat Ahle Hadith released a video requesting the government not to consider the then Lt. General Qamar Bajwa for the post of COAS on grounds that members of his family were allegedly Ahmadi. The Senator, in clear violation of the Constitution of Pakistan, presented grounds which were based on contempt for another religious group. Ironically, Mir is also a member of the Senate’s Committee for Rules of Procedure and Privileges. No action has been taken against Mir in the Senate or otherwise. General Bajwa went on to assume the office of the COAS.

The most glaring and embarrassing disregard for terrorism laws in Pakistan took place in the PP-78 Jhang II by-election on December 1. Masroor Nawaz, was elected MPA with over 48,000 votes, the biggest vote in the history of the city’s elections. Masroor Nawaz is an active member of the SSP, an organization listed on the First Schedule of the ATA. Masroor himself is placed on the Fourth Schedule of the ATA. He is notorious for following in the footsteps of his father, the founder of the SSP, and making fiery hate speeches against Shia Muslims. However, the Election Tribunal of the Lahore High Court, in a case involving another member of the SSP, Muhammad Ahmad Ludhianvi, confirmed last month that being on the Fourth Schedule is not the same as a conviction and hence cannot be considered grounds for disqualification. The Supreme Court, in another case this year, further confirmed that being nominated in a criminal case is also not the same as having a conviction and hence can also not be considered grounds for disqualification.

There are several videos of Masroor’s speeches available on the internet in which he is seen not only promoting bigotry against Shia Muslims but also threatening police officers belonging to the Shia faith. These speeches have resulted in the registration of cases against Masroor but not in any convictions. Of the five cases against him which are in the knowledge of this writer, Masroor has been acquitted in four. Perhaps the State again kept certain “interests” in view while deliberating Masroor’s trial.

So what purpose do these schedules under the ATA serve with their dozens of names of organizations and thousands of terror suspects? They serve as the perfect excuse to not do anything. On paper the State gets to claim that it is keeping an eye on activities of suspects and in practice it gets to allow suspects to take part in mainstream politics and hold public engagements without any legal impediments or administrative action.

The CTD raid in Rabwah took place as a result of a ban on the publications of Tehreek-e-Jadid and Al Fazl by the Punjab Government in 2014. The ban was placed on the recommendation of the Muttehada Ulema Board, a body empowered to declare any written or spoken word hate material. One of the charges framed by the CTD is under Section 11 W of the ATA. The publishers had challenged the ban in court and the final decision is pending with directions that no coercive action be taken against the petitioners in the interim. The State found merit in violating orders of the court but has found no merit in ordering a CTD raid against the SSP which publishes a weekly newspaper called Ahle Sunnat every Friday or the Jamaat-ud-Dawa which publishes various magazines both in violation of Section 11W.

The night of the raid in Rabwah, on one of the most popular news shows of the country, anchor Kamran Khan took the newly elected MPA, Masroor Nawaz, on air and questioned him about various videos of his speeches in which he is seen inciting hatred against Shia Muslims. Masroor dismissed the question, saying that those speeches are a thing of the past and everyone should move on. Masroor’s election proves that the CTD and the State have already moved on.

The writer is a lawyer based in Karachi working on legal literacy through Never Forget Pakistan and can be reached at @mjibrannasir

Corrections: The print version of this article ran some dates which have since been amended online. The errors are regretted.