Ajmal Kasab’s conviction and sentencing to death came as no surprise. The Pakistani Foreign Office mumbled a muted response, promising to study the judgment in detail. Indians meanwhile celebrated the conviction as a sign of the vitality of their judicial system.

But few could be naïve enough to think that Kasab’s conviction will deter future acts of terror. Or that it will help Mumbai’s residents put the horrifying attacks behind them. Or even that it will boost diplomatic relations between India and Pakistan.

Since the 1993 bombing of the World Trade Centre, many have debated the utility of prosecuting terrorists. Those convicted are often indifferent to verdicts handed down against them, and successful convictions have yet to discourage would-be terrorists. And yet, in this morally dubious war against terror, nothing could be more important than ensuring due process for terror suspects. This is a lesson Pakistan should internalise and espouse as it conducts the trials of six men accused of plotting the Mumbai attacks as well as hundreds of other suspected terrorists detained during military operations in Fata and the northwest.

Late last year, a high-ranking police official told me that the best way to deal with terror suspects was to eliminate them in extrajudicial ‘encounters’. He reasoned it was the fastest way to put them out of action. Some may say there is twisted logic to such thinking, but the approach is untenable for various reasons.

Primarily, due process reiterates the legitimacy of a democratic state, since the notion that all citizens are equal before the law is a key principle of democracy. Due process differentiates between democracies and authoritarian governments (or, for that matter, terror cells). A state that arbitrarily kills its citizens — no matter how heinous the crimes they may have committed — cannot aspire to legitimacy. And a legitimate state is the best antidote to terrorism, which thrives on power vacuums.

Moreover, for democracy to work, different organs of the state have to be accountable to the public. Trials, unlike ‘encounters’, are guided by the rule of law — transparent and open to public scrutiny. In its very set-up, the judicial system offers the public recourse to question the state’s actions.

It is ironic that Pakistanis who consistently speak out against US drone attacks are not vociferously demanding fair trials for all detained terror suspects. After all, the complaint against drone attacks is that they are a form of extrajudicial killing — capital punishment that is not preceded by a trial. We should demand that our own government gives up all extrajudicial activity — the detention, interrogation and punishment of terror suspects beyond the ambit of the law — before applying high standards to foreign powers.

Due process is essential on a practical level, too. Trials necessitate the building of a case — gathering evidence, tracking down witnesses and pursuing unanswered questions. Kasab’s trial, for instance, forced the Indian authorities to find concrete proof to back accusations that Pakistanis were involved in the Mumbai attacks.

In Pakistan’s current predicament, the prompt trial of terror suspects could help address the plague of militant networks. Judicial processes such as cross-questioning and permitting certain evidence could help answer questions about militant movement, terror financing and the alleged involvement of international forces or the intelligence agencies. Given the intelligence black hole that currently mars counter-terrorism initiatives, such information from the field could prove invaluable.

Sadly, Pakistan’s judicial system is in no position to ensure due process for terror suspects. The government never clarified whether military operations against militants were law-enforcement actions or operations ‘in aid of civil power’. It is thus unclear whether suspects should be tried in mobile military courts under the Action in Aid of Civil Power Ordinance (1998) or in regular sessions courts. Arbitrarily, last October Rehman Malik declared that terror suspects would face trial under the Anti-Terrorism Act (ATA).

Although the Supreme Court has set up special committees to monitor anti-terror courts (ATC), the system is a mess. ATCs nationwide face significant dockets, and many terror suspects detained as early as 2008 will not face trial until next year.

State prosecutors are expected to perform under the worst circumstances: the extended networks of terror suspects threaten their security, and complainants and witnesses refuse to testify in ATC proceedings for fear of reprisals. On a more prosaic level, prosecutors have no access to offices, legal resources or clerical staff, and few funds are available from the government to revamp the ATC infrastructure.

The ATC system is also vulnerable to widespread human rights violations. As per the Anti-Terrorism (Amendment) Ordinance 2009, ‘extrajudicial confessions’ recorded by security personnel are admissible as evidence; the remand period is extended from 30 to 90 days; and the burden of proof has shifted to the accused. Human rights groups have pointed out that these changes will be seen as an invitation for investigators to torture suspects and falsify evidence.

Compounding these concerns is the fact that terror suspects are often moved between locations, and investigators and prosecutors have to collect evidence without having access to the area in which the suspect was first apprehended.

The efficacy of Pakistan’s ATC system in stemming terrorism is further compromised by the fact that the ATA does not apply to residents of Fata, the area from where many detainees hail. These suspects have to be repatriated to their tribal agency to face justice under the Frontier Crimes Regulation; in other words, they get no trial.

Ultimately, if the Pakistan government wants to establish its authority and demonstrate regard for the democratic principle of due process, it will have to take a page from India, revamp the ATC system and ensure fair and transparent trials for all terror suspects.

huma.yusuf@gmail.com

Source: Dawn 09 May, 2010

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