ORDINANCE NO.

VIII of 2013 COMMENTS FROM MNA DR ARIF ALVI MEMBER INTERIOR AND NARCOTICS CONTROL COMMITTEE Pakistan Tehreek-e-Insaf recognizes from the very outset that as a nation, Pakistan is under special circumstances that require extraordinary measures on behalf of the Government (both Federal and Provincial). As a party we believe that the Anti-terrorism laws need to be framed/amended to curb terrorism and to close any loopholes that may currently exist within the Anti-terror legislation framework. Furthermore, it is imperative that convicted terrorists do not go free after committing crimes of such heinous nature. However, there is also no denying of the logic that such extra ordinary measures must not only be temporary but also capable of bringing about the required results. It is important that the amended antiterrorism laws do not ordain wide unchecked discretion which results in misuse of powers and provides scope for carrying out acts based on poor judgment of investigating and arresting officers or are used in extortion of bribes at the lower levels. The proposed Anti-terrorism (Amendment) Ordinance 2013 needs to strike a balance between the two competing rights, the right of the state to protect the citizens of Pakistan from the threat of terrorism and, the right of protection of fundamental rights as provided by the Constitution of Islamic Republic of Pakistan 1973. The suggestions detailed below were verbalized at the meeting very strongly by myself but no change was made in the ordinance and I was asked to submit the same in writing which is as follows: 1. (a) In Section 11B subsection 3, in respect of the word Credible Source note as under: Any Credible Source: The words credible source are used in the foregoing section in the context of listing an organization as proscribed organization on an ex-parte basis if there are reasonable grounds to believe the criteria as provided therein. It is pertinent to note that the opinion concerning the reasonable grounds to believe/form a decision in respect of the criteria listed in section 11B, may be formed on the basis of information received from any credible source, whether domestic source.

(b)

There are a number of important aspects in respect of the language used in section 11B. Firstly, the use of the word may signifies the discretion which may be exercised by the Federal Government when considering the information received from the credible source. Although, it is within the ambit of the Federal Government to exercise such discretion, the same will be correctly exercised when it is identifiable as to which types of sources are credible for the purposes of this section/Ordinance. Secondly, the word credible source is not defined under the Ordinance. This vagueness/lack of clarity in respect of the words credible sources is particularly important in light of the fact that the opinion concerning the reasonable grounds to believe the criteria listed in section 11B, may be based on the information received from credible sources. Thirdly, since the order detailed in section 11B is being made on an ex-parte basis and without giving the concerned organization an opportunity of being heard, it is imperative that the same is based on information received from identifiable credible sources. For the sake of clarity and in order to provide for an effective piece of legislation, it is suggested that the following amendment may be made: That the term credible source means information received from any credible source which includes inter alia International and domestic financial institutions, domestic and foreign intelligence agencies and/or international and domestic regulatory bodies like the Securities and Exchange Commission Pakistan (SECP).

(c)

2.

Section 11EE subsection 3 and 3B pertain to hearing of a review application of the concerned proscribed person. It is pertinent to note that section 11EE(3B) provides a mandatory obligation on the Federal Government to form a Proscription Review Committee but lacks clarity and detail in respect of the composition and powers of the same. i.e. the number of individuals(government employees) which shall form the committee, hierarchy of the same, conduct of review hearing and the powers to hear and consider evidence. In view of the foregoing, it is recommended as follows: An amendment should be made in the foregoing section and the matters detailed hereinabove should be defined with clarity.

(a)

(b)

By way of example, the proposed amendment could be as follows: the following new sub-section shall be included The Proscription Review Committee The Proscription Review Committee formed under sub-section 3 shall comprise of at least five (5) members, who shall be Government employees of not less than Grade 18 and above officers. The members shall be selected from a pool of candidates which have not been involved directly or indirectly in the ex-parte order passed under section 11EE (1). The decision of the Proscription Review Committee shall be made by majority decision. The concerns highlighted earlier in respect of the words credible sources apply in respect of the ex-parte proposed to be made under section 11EE (1). However, it is particularly important in light of the fact that the proposed ex-parte order now concerns the proscription of an individual instead of an organization. Section 11O relates to the seizure, freeze and detention of the money and/or property of the proscribed person/organization against whom an order has been passed under section 11B or 11EE as the case maybe. There are a number of concerns in respect of the foregoing section, which are noted as under: Section 11O(1) details the type of actions which may be taken against the proscribed organization/person but lacks clarity in terms of the government departments/offices of the Federal Government/individuals/government employees which shall carry out the same. Furthermore, it is unclear as to how the same will determine that money and/or property is owned and/or controlled by the proscribed person/organization. Section 11O(3) states that if a legal person violates. It is important to note that the foregoing section creates a distinction between a violation by a legal and non-legal person but does not attempt to define as to what constitutes as a legal person for the purposes of this section/ordinance. It is proposed that the following amendment shall be made: a legal person means a person which includes inter alia 11O (4) is silent in respect of the total time period within which an application under the same shall be disposed of.

(c)

3.

(a)

(b)

(c)

(d)

Section 11(5) serves as indemnity clause against the Government and/or person purporting to comply with 11O (1). However, it in pertinent to note that the insertion of the same leaves the aggrieved individual, against whom discretion has been exercised wrongfully, with no remedy. This is particular important in light of the fact that the person/organization shall be deprived of money/and or property for an indefinite period as there is no defined time limit under the section 11O (1).

4. Section 11OO purports to be a humanitarian clause whereby access is being provided to seized property or money but it was only verbally stated by the officials to me. It is being requested the circumstances under which access to services, money or services shall be provided there under should be defined clearly by way of providing examples. (a) The following amendment may be made: a new sub-section 3 shall be inserted as follows: that the provisions of section 11OO(1)(2) shall apply in circumstances which include inter alia the need/requirement to pay school fee of children, urgent or routine medical costs and/or day-today living expenses of family etc. The foregoing amendment is important as it is feared that without the presence of clearly defined circumstances, the access to services/money and/or property may be used as a bargaining tool and lead to corruption. Section 11P relates to the attachment of terrorist property. However, the same does not purport to define as to what constitutes as terrorist property for the purposes of this section/ordinance. It is proposed which items fall under the definition of terrorist property should be defined under the ordinance. Pakistan Tehreek-e-Insaf believes very strongly that the Anti Terrorism Act as modified, should come under yearly review of Parliament.

(b)

5.

6.