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Terrorism: judicial flaws

April 17, 2011

THE continuing wave of terrorist attacks in Pakistan demonstrates that the internal security situation remains a pressing challenge for Pakistan. The reality indicates that critical security challenges still remain unaddressed. Better coordination among intelligence agencies, the capacity-building of law-enforcement agencies, curbs on terrorism financing and adequate measures to prevent banned militant organisations from operating across the country are lacking.

The government has also failed to establish a robust counterterrorism narrative or force, and as far as the latter is concerned, is relying largely on its existing human and logistical resources. One of the most important challenges is the deficiencies in the prosecution and judicial system.

Despite all weaknesses, security forces are trying to build a response to terrorism. According to the Pakistan Security Report 2010 by the Pak Institute for Peace Studies, in 2010, law-enforcement agencies had arrested 10,161 suspected militants across the country, including 8,863 alleged activists of the Tehrik-i-Taliban Pakistan (TTP) and other Taliban groups, 50 Al Qaeda operatives, 288 suspected Afghan Taliban, 18 militants of Jundullah (the group based in Karachi) and 147 members of Lashkar-i-Jhangvi. Many of these suspects were released after preliminary investigations, although precise figures were not made public. But law-enforcement agencies feel reluctant to produce them in court because the high ratio of suspects exonerated.

Institutional weakness is clear in the judicial system, which often results in the release of arrested terror suspects. A spate of court judgments in high-profile terrorism cases has raised many concerns, and resulted in the release of arrested terror suspects. These cases included those suspected of being involved in the November 2009 suicide attacks in Rawalpindi, the September 2008 Marriott bombing in Islamabad, the Manawan police training academy attacks and the rocket-firing case at the Pakistan aeronautical complex in Kamra. Malik Ishaq and Akram Lahori, founder members of the banned sectarian terrorist group Lashkar-i-Jhangvi, were acquitted in 45 cases because of poor prosecution. Both were facing more than 100 cases.

Neither the judiciary nor the executive is satisfied with the existing anti-terrorism laws and the performance of the anti-terrorism courts. Prime Minister Yousuf Raza Gilani admitted in the National Assembly that anti-terrorism laws needed to be tightened and was concerned that terrorists apprehended by the law-enforcement agencies had been bailed out and that they again indulged in terrorist activities. Last year, Chief Justice Iftikhar Chaudhry showed his dissatisfaction with the poor functioning of anti-terrorism courts (ATCs).

The superior judiciary has noted that the method of appointments, a reason behind the poor performance of ATCs, and the legal system itself need reforms. The federal and provincial governments also need to rethink their approach to the judicial system. It is common practice for provincial governments not to cooperate with the judiciary. For instance, the Khyber-Pakhtunkhwa government has not taken notice of several reminders by the Peshawar High Court to establish new ATCs and equip these with judges and staff — 3,500 terror suspects are behind bars, waiting for their trial to begin.

The promulgation of anti-terrorism laws is another issue. The anti-terrorism (Amendment) Ordinance still not has been made the law. With the passage of the 18th Amendment, the president does not have the power to re-promulgate it without the National Assembly’s approval. This deprives the state of certain powers that are crucial to dealing with terrorism, such as a bar on banks and financial institutions on providing loans or financial support to members of proscribed outfits. Similarly, it was this ordinance that barred members of banned organisations from obtaining passports and travelling abroad.

A cohesive legislative framework to deal with terrorism, under which ATCs can effectively function, is very crucial.

Parliament needs to take up the issue immediately.

Legislation alone can never be an effective tool to deal with terrorism until the capacity of the legal system, including the ATCs, judges, lawyers and the prosecution departments, is enhanced. Apart from transparency and the appointment of capable judges in the ATCs, the Supreme Court and the high courts should monitor the functioning of anti-terrorism courts in accordance with the Supreme Court’s judgment in the 1999 Sheikh Liaquat Hussain case.

Successful prosecution is not possible without sufficient evidence. Therefore, it is important that police are better trained in investigation and crime-scene examination. At the same time, there is a need to reduce dependence on human evidence and to enhance forensic expertise. Effective witnesses protection programmes are vital. Without these, witnesses crucial to the prosecution’s case can easily be intimidated into silence.

At the same time, the law-enforcement agencies need to cope with new challenges by putting in place improved investigation, intelligence-gathering and intelligence-sharing mechanisms, and by developing a quick-response system. The rise in the number of acts of terrorism reflects the need for effective, efficient, resourceful and politically neutral policing and law-enforcement. Just as a better-trained and well-equipped police force is required to deal with the prevailing threat of militancy in the country, greater coordination and information-sharing between the intelligence community and the police is also critical, which will help in strengthening the prosecution process.

These steps are important not just in ensuring justice is done, but also in giving the police the confidence to take on the militants. If a police officer is afraid that the militants will be let off the hook and take revenge, who is going to have the confidence to stand up to the terrorists? Increased cooperation of the government with the judiciary in the establishment of an adequate number of ATCs and the recruitment of judges and other staff can prove to be a good first step.

The writer is editor of the quarterly research journal Conflict and Peace Studies. mamirrana@yahoo.com