Haunting acquittals – by Babar Sattar

The Lal Masjid brigade brought life to a standstill in Islamabad. Its vigilante missions caused harm and nuisance. But that paled into insignificance when over a hundred lives were lost in the security operation executed to regain control of the mosque and clear it of weapons and militants. Fourteen security officials lost their lives during the operation. They did not have the authority to decide whether or not an operation was to be carried out. They died in the line of duty. Likewise the young students holed up in the mosque were themselves victims of bigotry and the loss of their lives in the crossfire was a tragedy. But now that Maulvi Abdul Aziz is back in the mosque preaching intolerance once again, will anyone be held responsible for the crimes committed and the precious lives lost?

The Marriott bombing not only claimed many innocent lives, but also transformed Islamabad the beautiful into a barricaded city at war. An antiterrorist court recently released all those accused of facilitating the heinous crime for want of evidence. Similarly the accused held for planning, aiding and abetting the suicide attack that claimed Surgeon General Mushtaq Baig and several others a stone’s throw away from the GHQ have also been let go. Equally significant is the release of the prime accused in the Mumbai-style siege of the Manawan Police Training School in Lahore.

Does the existence of a criminal justice system remain meaningful if criminals cannot be tried and convicted in accordance with due process of law? Why are we consistently failing to bring to justice those who are responsible for violence and terror? Are the courts being too timid or lenient? Are investigation agencies conniving with the terrorists? Are they simply incompetent? Or does a fundamental contradiction in the distribution of power and authority between civil and military agencies lie at the heart of our failure to combat internal security threats and secure convictions?

Some judges might get intimidated when they receive missives from terror groups. But are they to blame for wishing to live out their natural lives? Is it not the responsibility of the state to guarantee the physical safety of its judicial officers and enable them to carry out their official responsibilities without considerations of fear? But intimidation aside, we must remember that in the realm of criminal law the prosecution has to establish a case against the accused beyond any reasonable doubt. And to the extent that there is lingering doubt, its benefit must go to the accused. Innocent, until proven guilty, after all is a corner stone of rule of law.

In our desperation to clasp convictions we must not succumb to the temptation of diluting our standards of justice and removing safety valves. For justice doesn’t demand conviction of the accused, but that of the guilty. It is true that the police and civilian investigation agencies are incompetent, ineffectual and suffer from a crisis of credibility. But what kind of financial and human resource investment is the state making to buttress civilian law enforcement agencies at a time when the country is confronted with its gravest internal security challenge?

Even more fundamentally which state agency is responsible for internal security? Is it the civilian police and investigation departments or the army and its affiliate agencies? It has been argued over the last decade or more that the foremost national security challenge confronting Pakistan is internal and not external. So then if the army is the de-facto guardian of our national security and the paramount threat is emanating from within and not outside our frontiers, can the army automatically assume responsibility for managing internal security?

This is not a theoretical question about our lop-sided civil-military balance. The military’s help with internal security duties might even be temporarily desirable in view of our current exigencies. But there is no legal authority backing the role being performed by agents of the military and the power being exercised by them. And this singular fact largely cripples the ability of our criminal justice system to deal with terrorism. When civilian security agencies exercise police powers of the state, they are authorized and aided in that regard by an entire framework of substantive and procedural laws such as the Pakistan Penal Code and the Criminal Procedure Code.

Any arrests made or evidence gathered by the police in accordance with these laws can be used in a court of law to seek a conviction. But when it is military agencies carrying out internal security duties, arresting people, interrogating them and gathering evidence, they fail to satisfy due process requirements of the law, as our legal framework doesn’t envisage the armed forces performing such role. When the accused is actually arrested by military agencies, and recovery of weapons and other evidence takes place during interrogations, such facts cannot be presented before a court of law.

This gap between the requirements of the law and our evolving practice of military agencies taking a lead role in investigating terror attacks then gets bridged by fabricating a bogus story about backdated arrest of the accused by the police and consequent recovery of weapons. The aim of such exercise is to satisfy the procedural requirements of the law. But it doesn’t work. A trial, simply put, is the story of a crime being told by the prosecution. The arrest or the accused and recovery of evidence linking the accused to the crime are the two foundational pillars of the prosecution’s case.

But when the story weaved by the police and the prosecution is simply not true, as it has to camouflage actual facts and the role played by military agencies, even a half decent defense attorney is able to poke holes in it and create doubt. The benefit of this doubt caused by the procedural impropriety practiced by state agencies then goes to the accused who walks away scott-free. And the rest of us keep scratching our heads and wondering why our judges and our criminal justice system fail to put the bad guys behind bars.

How will anyone ever be punished for the murder of the fourteen security personnel killed during the Lal Masjid operation when the military didn’t bother to conduct postmortems and document the cause of death for legal purposes? How can any of the weapons recovered from the mosque be linked directly to any accused in a court of law when the crime scene and the evidence was not preserved as it should be? How will the militants arrested in Swat be prosecuted for their crimes without any documented record of their lawful arrests, recovery of weapons and other evidence that could link them to violent crimes?

We are pursuing a mindless strategy against a torrent of terrorism and violent crime. The solution to an underequipped, underperforming and corrupt police force is not to use military agencies as a stop-gap arrangement when the army personnel are neither trained to shoulder internal policing responsibilities nor authorized by our legal framework to execute such mandate. It is shocking that no meaningful steps have been taken by the government so far to revamp our shambolic civilian security agencies with proper authority, equipment, training and human resources.

If enhancing national security and enforcing law and order are priorities of the government, all responsible civil and military agencies presently involved in internal security duties must sit together and devise an operational strategy that allows them to collaborate their efforts while functioning within the confines of our legal framework. It is the absence of a comprehensive internal security strategy and lack of concern for due process of the law that is tearing apart our criminal justice system and letting terrorists off the hook. Any delay in fixing all constituent parts of our criminal justice system is at our own peril.

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.

Source: The News, July 03, 2010



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