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A fair trial

Publication Date : 11-09-2012


Nothing can be more frustrating for a state than the vast majority of arrested hard-core terrorists being set free by courts for lack of evidence.

It presents a potential nightmare when some 2,000 alleged militants are awaiting trial for being involved in terrorist activities, many of them accused of masterminding suicide attacks and causing scores of deaths. It will be hard to convict them under Pakistan’s existing laws of evidence.

What is most worrisome is that many released suspects return to militancy, making it extremely difficult for security agencies to break the cycle of violence. It is not surprising that some of these released suspects are believed to be behind the latest surge in terrorist attacks.

The proposed new anti-terrorism laws seek to remedy this situation. The Investigation for Fair Trial Bill, 2012, if passed by parliament, would not only allow security agencies to monitor phone calls and other communications of suspected terrorists, but the evidence collected through such surveillance would be admissible in a court of law. Security agencies could also hold any suspect for investigation for six months on a warrant issued by a court. Another proposed piece of legislation, the Anti-Terrorism (Amendment) Bill, 2012, contains provisions for freezing, seizing or forfeiture of property used for funding terrorism.

The long-awaited legislation will certainly provide more effective measures for law-enforcement agencies to investigate terrorism-related offences. But there is also a concern that the laws could be misused by intelligence and security agencies, who could end up violating the privacy of citizens. Then there is also the question of whether the new anti-terrorism laws can be effective without a comprehensive counterterrorism strategy in place.

Such extraordinary measures are not uncommon since the rise of terrorist threats across the world in the post-9/11 landscape. Countries facing serious terrorism challenges like the US, the UK and India strengthened their laws long ago. Notwithstanding some valid criticism of human rights violations and excesses, the tough anti-terrorism laws have helped smash terrorist plots and prevent attacks in those countries.

For Pakistan, the Fair Trial bill is not only important for prosecuting terrorists, but also for stopping extrajudicial practices. The proposed legislation seeks to make investigation more transparent and security and intelligence agencies accountable to the courts.

Security agencies are tempted to resort to extrajudicial measures in the absence of the rule of law and judicial oversight.
Thousands of people have disappeared in past years, presumably taken away by intelligence and security agencies. The rise in extrajudicial killings by security agencies to some extent reflects their lack of faith in the judicial process. The issue of custodial deaths and missing persons has also become a key source of tension between intelligence agencies and the Supreme Court.

This predicament was highlighted in the case of the Adiala 11. It was a heartbreaking scene when seven emaciated young men, most of whom could barely stand on their feet, were produced before the Supreme Court earlier this year. They were among 11 suspected terrorists who were taken away by security agencies after they were released from Adiala jail by an anti-terrorism court for lack of evidence. Four of the detainees died in custody, presumably because of torture.

What happened to the Adiala 11 has exposed a dangerous faultline between our judicial system and the workings of security agencies. While the court ordered the release of the accused purely on legal grounds, security officials insisted that investigations had clearly established their involvement in the 2007 suicide attack on Pakistan premier intelligence agency Inter-Services Intelligence’s Hamza camp in Rawalpindi. But the evidence provided by intelligence agencies was not accepted by the court.

It is not just the lack of evidence, but also threats to their lives which deter judges from convicting terrorists and sectarian leaders facing multiple murder charges. How can witnesses be expected to give evidence when intimidated by armed men thronging the courtroom? The failure of the state to provide security to judges and witnesses is also a reason for offenders not being convicted.

Pakistan’s terrorism problem is, perhaps, more complex than that faced by many other nations. The country is confronted with a full-blown Taliban insurgency in the tribal areas and parts of Khyber Pakhtunkhwa. There is a direct connection between the insurgency and terrorist attacks in the rest of the country. Most militant attacks target the symbols of the state: military bases, offices of intelligence agencies and the government, and defence installations. It is an armed militia that has declared war on the state. This situation requires extraordinary measures.

Last June the president signed an act giving retrospective legal protection to the actions of security forces in the tribal areas. This may have been necessary to avoid any potential legal complications in military operations against insurgents. But the Action (in Aid of Civil Power) Regulation, 2011 also raises questions about giving legal cover to alleged extrajudicial killings by the military in conflict zones.

Indeed, laws form a critical part of a counterterrorism policy, but they cannot be effective in the absence of a multidimensional approach to the problem. Laws by themselves are not enough to handle the grave challenge Pakistan is presently confronted with. What is most important is whether there is the political will to establish the rule of law in the country. The main purpose of the proposed legislation is to deny breathing space to terrorists, but there is a much greater need to put in place an effective security and intelligence mechanism to get to the terrorists before they strike.

The writer is an author and journalist.


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