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Tuesday May 24, 2022

Consigned to purgatory

November 20, 2021

The writer is a lawyer and doctoral researcher.

On November 7, 2021, the federal government removed the Tehreek-e-Labbaik Pakistan (TLP) from the list of ‘proscribed’ organisations notified in the First Schedule to the Anti-Terrorism Act, 1997 (the Act).

The notification states that the Punjab provincial cabinet (upon whose recommendation the TLP had been proscribed earlier) had considered the TLP’s request and in view of the latter’s “assurance and commitment”, concluded that it would be in the “larger national interest” to revoke the proscription.

The decision has been rightly denounced by many with the same ferocity as in the aftermath of the Faizabad dharna, and the comparison of state-TLP dynamics with the mythical snake eating its own tail is a common refrain. Nevertheless, the notification’s inevitability was as well assured as the violence and destruction that had preceded it in the recent TLP protests across the country, which resulted in five police officers being killed and dozens more injured.

What warrants a closer look, however, is the selective and insidious deployment of the Act to proscribe (or blacklist) various individuals and organisations. While wielded as a tool for negotiation in the TLP’s case, the majority of individuals blacklisted under the Act are consigned to a vastly different fate.

The Act empowers the federal government to confer proscribed status on an organisation believed to be “concerned in terrorism”, an inference that can be drawn under the Act from a range of activities which include commission of terrorist acts as well as assisting in the incitement of hatred and contempt on religious, sectarian or ethnic lines.

An individual who is suspected of being concerned in terrorism, or “concerned in any way” with a proscribed organisation, can also be declared as a proscribed person, resulting in their name being notified in the notorious Fourth Schedule. Proscription is in line with post-9/11 sanction regimes in the US as well as the EU and the UN Security Council, all of which have been roundly critiqued by human rights organisations for their opacity and lack of due process.

The effect of such blacklisting is a near-complete suspension of liberty, and, in effect, life itself. In addition to providing sureties for good behaviour, proscribed individuals must report on a weekly basis to the police, and in many cases, also to the Counter-Terrorism Department. Apart from having their CNIC suspended (which adversely affects job prospects), their movements are severely restricted and they are prohibited from leaving their homes on public holidays and from accessing public places such as parks. A blacklisted person must obtain permission from the police before leaving their permanent residence for any period – a single missed reporting appointment, or any other lapse in compliance with these ironclad strictures, can trigger criminal proceedings.

Given the draconian nature of Fourth Schedule restrictions, legitimate national security concerns must be balanced against substantive and procedural due process not just on paper but in practice as well. Currently, our blacklist procedures fail on both counts.

The Act requires, for instance, that a person must be told they are blacklisted within three days of the order, and grants them the right to file a review before the government within thirty days. In practice, however, most individuals are only apprised of their proscription several weeks after the fact, without any grounds being offered. This remedy is rendered even more illusory by the fact that the reviewing authority is the same is the same as the authority issuing the order.

The Act’s vague language also requires the government to have “reasonable grounds” to place a person’s name on the Fourth Schedule, which can be based on information received from “any credible source”. Superior courts, have sought to structure this discretion; the Lahore High Court recently held that “reasonable grounds” must be supported by concrete evidence, and that a criminal history on its own is insufficient grounds to condemn someone for life (Qari Muhammad Arif v Secretary Home Department & Others, 2021). The court also held that it could adjudicate the legality of such orders and assess the adequacy of the evidence, which the authority must present. However, not only is this safeguard limited to the rare case in which a blacklisted person has the opportunity and resources to initiate litigation, but the process of proscribing individuals remains opaque, and the degree of scrutiny afforded to the handful of cases that manage to land before the high courts varies considerably, depending on the vagaries of the court’s roster rotation.

I witnessed some of these challenges firsthand when I represented a blacklisted individual in constitutional proceedings challenging the legality of his proscription. My client had been one of the numerous Pakistani citizens illegally detained by the US authorities during the war on terror, with the acquiescence of the Pakistani state. The US’s infamous regime of detention and torture is now a well-documented fixture in history – for instance, a 2012 US Senate Intelligence Committee Report found that the CIA detained individuals “who did not meet the legal standard for detention”, amongst numerous other rights violations. After being held by the US authorities for almost a decade without charge or trial, my client was repatriated to the Pakistani authorities in 2014, where a fresh hell awaited him – his name had been inserted into the Fourth Schedule, despite being thoroughly investigated by local authorities and found to have no criminal background.

Since none of the prerequisites for proscription had been fulfilled in my client’s case, a legal challenge before the high court on constitutional grounds appeared straightforward at the time. In the ensuing proceedings (which included numerous similarly aggrieved and blacklisted co-petitioners), the court repeatedly called upon the concerned government officials to provide the evidence on the basis of which they had issued the proscribing orders. For over six months, the authorities stalled on one pretext or another. Then the Covid-19 pandemic hit, and everything came to a standstill.

The severely disproportionate impact of Covid-19 on socio-economically underprivileged groups is a well-recognised global phenomenon – in the case of Fourth Schedulers, this was exacerbated even further by the fact that the CNICs of proscribed persons are indefinitely suspended, which disqualified many (including my client) from availing the pandemic aid offered by the Sindh government.

Being a blacklisted person (with its attendant physical restrictions as well as socio-political stigma) leaves one with miniscule job prospects, and my client’s income from being a rickshaw driver was barely sufficient to sustain his family. The denial of essential economic aid (which had been assured to every citizen as a fundamental right during the early days of the pandemic) was yet another stake that drove home the dehumanisation of blacklisted individuals.

The paranoia surrounding national security has rendered legitimate critique of anti-terror law a murky endeavour. While the definitional boundaries of ‘terror’ and the jurisdiction of anti-terrorism courts have received significant attention, scant focus has been directed towards the long-term efficacy of blacklisting individuals. Although the Act requires all proscription orders to be reviewed every three years and cancelled if no reasonable ground exists for extension, in practice, proscription orders have been automatically extended without fresh grounds.

In essence, there is little incentive to re-evaluate blacklisting orders by undertaking consistent and sophisticated investigation to monitor changing circumstances. Equally, blacklisted individuals are left with little opportunity (let alone incentive) to integrate socio-economically and politically, with their lesser-than status being constantly bureaucratised and reinforced. Once blacklisted, the corrosive social stigma of terrorism is permanently branded upon their existence, regardless of the facts.

The clamour for ever-tightening regulations in the name of national security doesn’t show any signs of abating, either nationally or globally. Therefore, an empirically informed evaluation of the long-term structural impact of anti-terror measures such as blacklisting is vital, so as to examine its actual efficacy in light of the Act’s stated aims.

The recent withdrawal of the proscription status from the TLP has rightly drawn ire on account of the organisation’s continuing impunity for mass violence and murder, and the grotesquely selective application of the Act in the TLP’s case warrants thorough scrutiny. Equally, it calls for long over-due attention to the experiences of those individuals who have been blacklisted under the Act without justification or due process, and who remain consigned to purgatory under the looming specter of the Fourth Schedule.

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