War On Terror And Judicial Collapse In Pakistan – Analysis
The prevailing chaos and crisis the Pakistani society is entangled in is not merely a law and order problem but the result of a covert war, wherein the irregular enemy war combatants are ruthlessly attacking the Pakistani state and nation. Ironically, the national law-making institutions, political leadership as well as the military establishment have remained oblivious to this fact since the last decade. All this government is trying to do is to overcome this daunting challenge via various administrative measures relying on common practices of peace time law and order situation like police FIR’s, criminal investigations and looking towards the collapsed judicial system for any permanent solution. Consequently, the national internal security profile continues to get bleaker with every passing day.
Except for military response and efforts, national security has been compromised in one way or the other at diplomatic and political level as there is no realization of the war which is being waged against Pakistan. Diplomacy had failed a long time ago after a policy level disaster in 2001 when Pakistan joined WoT without negotiating anything for its own national interests. The national media has been handed over to paid and sold out analysts and anchors. Political parties shamelessly indulge in mud-slinging and point scoring and the economy is in complete chaos. In this scenario, the judiciary had remained the only hope to keep intact the people’s faith in the state by providing justice and prompt punishment of the culprits. But unfortunately, in Pakistan, the judicial collapse has emerged as the worst one thus far and due to this the hopes of the masses in the judiciary have been shattered and placed the national security in complete panic on the internal axis as well. This failure has led the whole nation to the brink of complete social anarchy. A glimpse of this horrendously possible situation can be seen in many of our urban centers, particularly in Karachi.
Subsequently, this leaves the military as the only institution to bear the entire burden of fighting a covert irregular urban war in Pakistani cities where the Non-State Violent Actors (NSVA’s) have been used by hostile forces in the region and world. Law Enforcement Agencies and military are fighting an extremely complex, nerve-wracking and endless war within the Pakistani borders against foreign funded NSVA’s. The judicial crisis is so severe that the military top brass has openly expressed their unease with the current state of judiciary vis-à-vis convicting the terrorists. Finally the military top brass has marked the Achilles’ heel in the entire chain of administrative and governance measures to combat this menace.
State of Pakistani Anti-Terrorism Legislation
Unlike the world community, not a single legislation attempt was made after 9/11 to prevent and obstruct terrorist activities on Pakistani soil. This negligence provided opportunities to the global terrorist organizations to establish their financial and personnel networks inside Pakistan particularly in FATA and Baluchistan. Now both these areas have been turned into battle zones where the LEA’s and intelligence agencies had failed to check these terror networks preemptively due to the absence of any clear anti-terrorism policy and adequate legal tools to avert the plans of these terrorist groups. But that was just the beginning!
Consequently, when the hostile intelligence agencies established a cloak-and-dagger terror networks in Afghanistan and FATA, which were completely asymmetric and irregular in nature and operation, the shortcomings of the Pakistani laws for the purpose of internal security were exposed completely. Pakistan is under attack but ironically the Pakistani government, the institutions and the lawmakers are still debating over how to improve the law and order situation? While the country is being attacked by foreign funded murderers and anarchists, even the realization of the need to discuss these challenges and building responses is not there among the political elite of the country which is too busy in plundering, looting and power-grabbing games. There is simply no question of any political will or the capacity to undertake this challenging task.
The brief history of anti-terrorism laws in Pakistan vividly explains the sheer lack of commitment and earnestness by the Pakistani politicians. The last anti-terrorism act was promulgated in 1997. Though the term “terrorism” was defined for the first time in this law but this definition is certainly not going to help in coping with the threats of the ongoing multifaceted covert war. Apart from that, special Anti-Terrorism Courts (ATC’s) were established along with the Anti-Terrorism Appellate (ATA) tribunal. But it was declared unconstitutional by the Supreme Court of Pakistan right after it was enacted for the first time in 1997. Instead of addressing the SC’s objections through amending the conflicting articles, the then government issued the Anti-Terrorism (Amendment) Ordinance. Apart from being a subject of reissuance by the President after every four months, this ordinance actually made the original anti-terrorism act of 1997 quite ineffective in terms of investigating and convicting the suspects and terrorists as the special Appellate Tribunals were disbanded, appeals against the decisions of the ATC’s were henceforth to be filed in the respective High Courts. Also, the restrictions were placed on the earlier act’s provisions regarding the trial in absentia to accord with regular legal procedures. After these changes, law and order situation worsened once again, particularly in Sindh. The Government introduced Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998 through which broad judicial powers were given to the army units deployed in Karachi.
Additionally, a new crime with the name of “civil commotion” was also introduced to punish anyone involved in creating internal disturbances in violation of law or intended to violate the law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching/lifting, damage to or destruction of State or private property, random firing to create panic, charging extortion, acts of criminal trespass, distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order.
But before the military could bring about a positive change to the situation, the Supreme Court once again declared the ordinance as unconstitutional as the politicians of opposition (current government) filed cases against the validity of this Ordinance. The Ordinance was declared as unconstitutional once again as it had no legal authority and effect according to the SC. Later on the Armed Forces (Acting in Aid of Civil Power) Ordinance was repealed in April 1999. However, “civil commotion” is still included as a crime under the Anti-Terrorism Act of 1997. In August 1999, the original 1997 Act was amended to authorize the establishment of ATC’s all over the country. But these decisions failed because of the following factors:
1. The authority of the military to curb the culprits was repealed by the Supreme Court. On the other hand, the politicians did not address the primary legal weakness in conviction of terrorists which is the law of evidence. It is still based on accounts of eyewitnesses instead of investigating the cases on scientific basis. Due to the prevailing sense of insecurity, the eyewitnesses often do not come forth to identify the terrorists which make their acquittals easy from the courts.
2. LEA’s had no authority to preemptively monitor, search and investigate the suspects without obtaining legal warrants.
3. Appeals against the decisions by the ATC’s were to be made in the civilian courts which killed the entire rationale of establishing ATC’s.
After 9/11, the anti-terrorism act of 1997 was sought to be improved through the ordinances, but that provision is no more with the President after the 18th Amendment, passed last year, which disallows the president from rectifying the ordinance again. On the other hand, the country continues to suffer widespread terrorism and invites frequent comments from the western media regarding its failure in ensuring peace and maintaining law and order.
The epic judicial and legislative failure depicts the following picture of current situation:
Anti-terrorism laws are outdated. They were made before 9/11 and the initiation of the 4GW against Pakistan hence they do not provide any assistance to the armed forces in their fight against the enemy irregular war combatants. These laws are rather counter-productive as a large number of the combatants have been released by the courts due to the presence of loopholes in these laws.
The current anti-terrorism law addresses the prevailing security crisis as a law and order situation rather than encompassing the terrorism and insurgencies as acts of war.
Civilian courts have been unable to convict and punish terrorists through the legal process. This failure puts the security forces under more pressure in their fight against terrorism and insurgencies. The enemy war combatants, released by the civil courts, rejoin their cadre to launch fresh attacks against the security forces making their counterinsurgency ops way more difficult and at times futile.
More than 1000 trained irregular war combatants, captured by the security forces during the daring operations in Swat and Bajur, were released by the civil courts due to inherent legal flaws in the law of evidence.
Not a single terrorist has been convicted and sentenced to death since the last decade and the possibility of doing so would remain next to none unless the current laws go through a complete overhaul according to the needs of irregular urban warfare.
The Pakistani parliament has failed to come up with a unanimous definition of the term ‘terrorism’. There is no political consensus on dealing with this challenge. The subsequent policy failure stems from this inability of national law making institutions.
In the absence of a comprehensive judicial policy to combat terrorism and the foreign funded war combatants, security forces at times have to take harsh decisions which later on become an excuse for the hostile forces and compromised media elements to malign them. Media trial of the security forces after the recent incidents in Quetta and Karachi is the clearest manifestation of this assertion.
The current government had established National Counter-terrorism Authority (NACTA) in 2009 with funding from the EU to devise a comprehensive anti-terrorism plan. At this point in time, the presence of this organization even after two years is nominal. Its role has been defined merely as an advisory body.
Any sort of political consensus regarding the realization of this ongoing war has not been achieved yet and there is no consensus in sight, in the near future, over this grave threat to the nation. The mainstream political parties like PML(N) are hell-bent on blaming the armed forces and the intelligence agencies for their political goals. When the country is bleeding and the security forces’ personnel are giving the ultimate sacrifices daily, this behavior is completely treacherous! But again, there is no law to put this utter nonsense to an end. More unfortunately, there is no realization, even on judicial level, about the impact of this mud-slinging on the armed forces. Resultantly, these politicians are playing the role of enemy collaborators in demoralizing the armed forces.
This judicial failure has put the security forces and their counterinsurgency ops in a very difficult position on the legal axis. If they eliminate the terrorists and insurgents in these operations then the media, the HR organizations and even the courts, start raising questions of legality and authority of such operations and if they bring the terrorists to the courts they get easy acquittals and rejoin their cadres to resume their attacks against the state and the armed forces.
The Anti-Terrorism Act of 1997 is vague and cannot guarantee the adequate legal support to the armed forces. Not only has this Act been unable to provide enough authority to the LEA’s and intelligence agencies in the current chaotic security situation, it also has no effective protection for the witnesses and judges in terror related cases. Finally, it has no provision or penalty for the political entities having links with terrorists and foreign funded mercenaries. These are the serious shortcomings of Pakistani anti-terrorist laws and must be plugged in by strict but consensually constituted laws at the federal level and their implementation must be severely ensured.
Final Word
There is a dire need of radical measures to be adopted both at policy and practice levels on the legal axis of the overall national security policy. Right now, visible lacunas prevail in Pakistan’s anti-terrorist laws due to the completely confused and compromised legislative. The nation and the armed forces would continue to suffer and bleed in the presence of the current anti-terrorism laws. Tactical victories against the enemy irregular war combatants would remain futile if these gains are not nurtured at the administrative and political levels and this is exactly where Pakistan needs to act decisively and swiftly. Peace time laws cannot deliver during wars; the sooner the nation and leadership understand this fact the better it would be. Till the formulation of a comprehensive judicial policy as per the national security requirements, military act must be invoked immediately in order to punish the enemy combatants and put the fear of Allah in their hearts. This task should have been done a long time ago; any further delay would be suicidal for Pakistan.
