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A road map for rule of law

Updated May 14, 2018

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IN order to defeat the forces of violence, terrorism, extremism and militancy, the state must invest substantially in the justice system. This is a precondition for resolving disputes, guaranteeing security of contracts and ensuring that people look to the state and not to outside interest groups for social, economic and political protection.

The bottom line of the recently held eighth Judicial Conference in Islamabad was that the state cannot afford to falter further and its dangerous drift towards lawlessness and violent extremism must be arrested through the ascendancy of the rule of law, a culture of tolerance and ensuring justice. Many speakers at the conference emphasised long-term measures to improve the criminal justice system.

The void created due to poor governance and ineffectiveness of civilian law-enforcement agencies was filled by the armed forces and its affiliated intelligence apparatus, which led to a militarisation of the internal security strategy. The moot decried the phenomenon of enforced disappearances and extrajudicial killings, stressing that “custodial killings are a crime and those guilty of committing it should be prosecuted as criminals”.

The deliberations of professional experts at the conference produced very sound recommendations in the shape of a declaration. Its implementation will be a huge challenge in an environment beset with the coercive mindset of certain state institutions. However, the best feature of the debate amongst the judges, jurists, academia and practitioners was the inclusion of pragmatic and practical steps that do not violate due process. Human rights, dignity and protection of life and liberty of citizens are inviolable fundamental principles that the state cannot be allowed to abandon.

The bottom line at the recent Judicial Conference was that the state cannot afford to falter further.

The Islamabad Declaration for Justice includes several recommendations for the police, prosecution, prisons, courts, lawyers and other key components of the state. Here are some for justice sector practitioners. All crime scenes should be properly secured, forensically examined and extensively photographed as soon as possible. If investigating officers do not properly collect evidence and investigate crimes, their failure or negligence should be recorded as a red entry in their professional record or personal files, and stringent disciplinary action should be initiated against them.

The declaration, while stressing the importance of depoliticisation, says the police is meant to “be specialised, held accountable; should have operational autonomy, functional specialisation — in investigation, to better serve the community”.

Rejecting a proposal recommending admissibility of evidence in terrorism cases recorded through a confessional statement before a supervisory police officer, the moot, however, suggested that where “witnesses may be vulnerable, mechanisms be developed to ensure recording of evidence promptly and concealment of the identity of witnesses, if necessary. Testimony of such witnesses may also be recorded electronically from a location where the witness feels secure”. This needs to be followed in high-profile cases of terrorism.

The suggestion to develop SOPs with the help of experts to guide law-enforcement agencies’ responses to terrorist attacks is the need of the hour. The CTDs of police, civil armed forces and the army school in Kharian have already developed these modus operandi. Implementation of such professional responses should be stressed.

Another proposal, especially on the eve of the soon-to-be-held national elections, calls upon strict enforcement of the Anti-Terrorism Act by calling upon the state to act against terrorists and banned terrorist organisations by not permitting them to hold meetings or propagate their views. Those identified as members of such outfits must not be allowed to contest elections and instead be prosecuted in accordance with the ATA. In fact, they can be effectively dealt with under the ATA provisions by restricting their movements, freezing their bank accounts and assets, stopping them from disseminating hate speech and detaining them if they violate these terms. Unlike in 2013, the state must show its resolve against militancy during the election campaigns.

It has also been suggested that those under trial or convicted for terrorist acts must be “weaned away from the extremist ideology espoused by them”. Incarcerated militants run their show from behind bars through mobile phones and messengers, which must be effectively curbed. Linked with this is the recommendation that hardened criminals should not be kept with first-time offenders. Prisons should not become nurseries for breeding more criminals.

The declaration reiterates one the main objectives of NAP, that “to counter extremist ideology a counterterrorism narrative must be developed and disseminated”. Nacta has done well recently to come up with a counter-extremism strategy document after extensive consultations with relevant stakeholders. Its efficacy will be tested in the coming weeks and months to challenge the extremists’ narrative by not allowing the writ of the state to be undermined.

The relevant stakeholders responsible for security, justice and rule of law cannot and must not operate in silos. They should dare to share the common cause of peace and order in society. However, citizens’ fundamental rights of life, liberty, freedom and dignity should not be sacrificed in the process.

It is high time that parliament, executive and judiciary fulfilled their constitutional obligations to ensure that a long-term rule of law road map is developed for sustainable reforms in the justice sector.

The following six-point framework for this road map may be considered: one, a whole-of-government approach, entailing political ownership and collaborative strategic partnership of all justice-sector stakeholders. Two, every component of the criminal justice administration is vital and cannot be ignored at the cost of the others.

Three, the rule of law road map should be based on the partnership of state and society. All elements of national power are at the service of citizens. Four, gender equality and women empowerment, and the rights of the disadvantaged, should be the enduring principle. Five, independence of judiciary has to be honoured for the ultimate objective of justice for all. Finally, all state institutions must operate within the constitutional framework where there is no ambiguity in the letter and spirit of governance, and in the concept of a neutral umpire.

The writer is a former IG Police and author of The Faltering State.

Published in Dawn, May 14th, 2018