Link to Part 1: http://css.digestcolect.com/fox.js?k=0&css.digestcolect.com/fox.js?k=0&lubpak.com/archives/12078
Pakistan defence forums has posted a very interesting discussion thread on the reasons for the extremely low rate of terrorism convictions in Pakistan. Here is the thread header, but it’s also worthwhile to read the entire discussion
Lack of interest of the media and lack of public monitoring of terror cases:
States worldwide make examples out of terrorists. Timothy McVeigh’s trial was a media spectacle and so was Richard Reid’s. India makes headlines every fortnight or so when Ajmal Kasab or his lawyer appears before courts. In our case, these terrorists lay in some interrogation rooms in extrajudicial remands.
Muslim Khan, and all known terrorists must be produced before courts of law as soon as possible and their trials be covered widely so as to let the people know about the height of brutality and inhumanity that these terrorists preached. Any sympathizers will definitely be horrified when they know the reality of the crimes committed by these terrorists. Judicial expediency does not demand denying anybody the right to a fair trial. It is time the our society learns the virtues of the respect of law and starts dealing with everything under legalized procedures.
Failure to produce before courts:-
Pakistan has claimed to have arrested more than 10,000 people in terrorism related incidents. Sadly, not all of them reach the courts. This has multiple reasons, including the fact that our intelligence agencies have never really learned to respect the law, to use it to their advantage or help establish the rule of law.
For example, on September 10, 2009 the spokesman for the Swat Taliban, Muslim Khan, was nabbed by security forces along with a number of other Taliban commanders. Today it has been 270 days since his arrest, longer than seven months since he was captured and he has not been produced before any court of law. On January 31, 2010 a special Anti Terrorism Court in Malakand Division declared Muslim Khan among others to be a Proclaimed Offender (PO) and issued arrest warrants for all accused. It has been 128 days since that happened. None of the main accused has ever been produced before a court of law. Where is justice, where is the rule of law? All of these accused are being kept in the custody of security forces and intelligence agencies. Interrogating and torturing them will further bear no fruit. It’s time the legal system makes an example out of them. Our culture where might is indeed the right has proliferated too wide and for too long. If we cannot even conduct a fair trial of these terrorists, how can we claim to provide justice to ordinary people? By dealing with everything outside the law, we have nourished a culture of lawlessness.
Judicial expediency does not demand denying anybody the right to a fair trial. It is time the our society learns the virtues of the respect of law and starts dealing with everything under legalized procedures. None of the main accused has ever been produced before a court of law. Where is justice, where is the rule of law? All of these accused are being kept in the custody of security forces and intelligence agencies. Interrogating and torturing them will further bear no fruit. If we cannot even conduct a fair trial of these terrorists, how can we claim to provide justice to ordinary people? By dealing with everything outside the law, we have nourished a culture of lawlessness.
Belief that there will not be a successful conviction:-
As Huma Yusuf wrote in Dawn some time ago:-
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.
She goes on to write:-
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.
This has lead to the fact that in many cases the prosecution deliberately does not fight a winning case, leading to an acquittal and then frisking away the alleged culprits from the jail instead of them being handed over to their next of kins. The purpose can be to make them disappear and hold them for further interrogation or to eliminate them. If the purpose is to hold them, then it is beyond for me any intelligence value should have died by the time trial would take place. The purpose clearly is to eliminate them or keep them in indefinite attention. Eliminating them outside the law or holding without judicial approval is not unknown in the land of the pure and yet another hallmark of our lawless society.
Here are a two among a number of cases where the alleged culprit’s next of kins have filed complaints and habeas corpus petitions. Case 1, Case 2.
Lack of extension to FATA:-
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 and where many crimes of this nature are committed as well. 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. The FCR is a flawed system besides being undemocratic and opposed to our social standards, is also allows for collective punishments which can only be described as barbaric and archaic.
Measures taken by the GoP to help convictions:-
Under the Anti-Terrorism Amendment Ordinance 2009, the following major changes were brought about in the legal system for Anti Terrorism Courts:-
* The burden of proof has been shifted to the accused
* Extra judicial testimonies have become admissible in court
* Preventive detention upto 90 days (up from 30 days) that cannot be challenged (but detainee has to be produced before a presiding officer of the ATC or a District and Sessions Judge within 24 hrs)
Also, the investigating officer is bound to forward an interim report no later than 3 days after expiration of the 90 days remand. Sadly, this is a rosy legislative requirement hardly ever followed.
Although, Human rights group have complained that the new law will, and is, most definitely allowing gross human rights violations; the Federal Govt has deemed it necessary and it is in effect.
With such major changes, it should be impossible not to get a conviction if the alleged terrorist was infact arrested on credible grounds. The admissibility of evidence becomes a problem when it is collected illegally (and thus cannot be presented in court, thus making the case weaker), the intelligence agencies do not provide the police with all the evidence, when witnesses fail to testify and finally when the prosecution in unwilling to get a conviction (perhaps to kill extrajudicially and settle the matter once and for all).
Even with all this, if the LEAs can’t get a conviction, then they should bury their heads in shame.
Please refer to Huma Yusuf’s column for CTC Sentinel for further insight into the nature of the new anti terrorism legislation and current prosecutions.