war on terror and collapse of judicial syetem

8/6/2019 War on Terror and Collapse of Judicial Syetem

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The prevailing chaos and crisis the Pakistani society isentangled 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 thePakistani state and nation. Ironically, the national law-making institutions, political leadership, as well as themilitary establishment, have remained oblivious tothis fact for the last decade.All that this government istrying to do is to overcome this daunting challenge viavarious administrative measures, relying on common practices of peace-time law and order situations like police FIRs and criminal investigations, and lookingtowards the collapsed judicial system for a permanentsolution. Consequently, the national internal security

profile continues to get bleaker with every passingday.

Except for military response and efforts, nationalsecurity has been compromised in one way or theother at diplomatic and political level, as there is norealization of the war which is being waged againstPakistan. Diplomacy had failed a long time ago after a policy level disaster in 2001 when Pakistan joined theWoT 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.

PNS Mehran – Attacked by enemy irregular war combatants

By: Shahzad Masood Roomi

Desperate times call for desperate measures!

War on Terror and Collapse

of the Justice System



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among the US legislative bodies to strengthen thelegal side of their efforts against terrorism. All thecriticism and cynicism was ignored while devisingthis policy. The John Warner Defense AuthorizationAct officially allows the US President to implementmartial law. This is perhaps the only law in thedemocratic world allowing the elected president tooverride all the state and local authorities and stationtroops anywhere in America to "suppress publicdisorder".

Just like the US, some of the toughest anti-terrorism laws were introduced in the UK after 9/11.The changes made in the anti-terrorism laws gavespecial permission to the UK authorities to conducttheir operations aggressively. New Control Ordersregimewas introduced, assigning unprecedented legal powers to the British police and other LEAs includinga provision to impose curfew for 16 hours at any place

on need basis, without wasting time in seekingapproval from the British government. The purpose of these laws is to enable the British LEAs to monitor andinvestigate the suspects with a more comprehensivelegal cover provided by the British government.Hence the UK authorities were able to detain 1471suspects from 9/11 to 31/12/2008. Though only 196were finally convicted by the courts, but even that became possible only due to the new anti-terrorismlegislation by the Labour Party. The British police wasallowed to detain any suspect (without charging him)

for 28 days.

Furthermore, in 2007, the Academic TechnologyApproval Scheme (ATAS) directive was introduced aswell to set strict criteria for foreign students whowanted to study in the UK. Along with obtaining thespecific clearance before the visa application, theBritish government labeled some areas of sciences as“sensitive subjects” for the students hailing fromcountries not included in the European Union (EU).

The British government had to face severe criticism

from various corners including the HR circles fromwithin the UK. The London based Guardian Newspaper published the following in 2009 in thisregard:

Lord MacDonald who oversaw the government'sreview of counter-terrorism powers commented, ' UK over-reacted after 9/11 attacks'. Lord MacDonald toldthe BBC:

But a firm political commitment to provide theeffective sheathing on the legal axis helped the UK intelligence and Law Enforcement Agencies to makethat countrymore secure.

According to the UK security chief, special powers to

LEAs are the essential tool in cases where there isintelligence that someone is involved in extremism but has not yet committed a crime, such as someoneassociating with the known plotters. Countlessterrorism suspects have been released by the Pakistanicourts as the Pakistani LEAs have no such power or authority thus enabling the terrorists to seek easyacquittals from the courts.

In the EU, work on anti-terrorismlaws was already in progress before the 9/11 attacks,

but there existed a considerable amount of criticismover these proposed anti-terrorism laws. Two security

packages, built on a considerable amount of legislation, were already under consideration. But the

adaptation of these laws was still a concern whichchanged dramatically after 9/11. This incident

certainly sped up the process of adopting the highlydebatable laws. This phenomenon was observed in the

entire EU region, where the member nations reached aconsensus which was not there previously. Had it not

UK:

European Union:

“Labour has passed an unprecedented amount of legislation since coming into power, roughly

estimated as creating one new criminal offence for every day in office, with numerous pieces of anti-

terrorism legislation.”

"I think we saw some powers, some laws, enacted which did go too far."

British Police got empowered through new anti-terroris



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been for 9/11, it would have taken years of negotiations among the EU member states before

implementing these laws. The regulations on asylumand immigration across the EU remained the major

focus of the new laws.

Evelien Brouwer asserts:

Although the Indian reaction after 9/11 was a biased

one, but it was firm and decisive in nature. Preventionof Terrorist Activities (POTA) Act was the officialconstitutional and legal reaction to the threats like9/11. It was introduced in March 2002. Irrespective of its draconian nature, this law helped Indian LEAs toexpand the legal precincts of their operations due tothe provision of more powers and political will of theIndian lawmakers. Former deputy Prime Minister L.K. Advani, in 2002, described it as 'a post-9/11imperative'.

POTA was one of the harshest anti-terrorism laws passed after 9/11 due to its abhorrent provisions like

putting the responsibility on the accused to prove their

own innocence. The confessions made to the police

(often obtained under torture) were to be accepted as

credible evidence in order to punish the accused one.

Thoughthislaw was repealed once the BJPwas ousted

in the 2004 elections, but still it demonstrated the

political will to constitute the required laws in order to

deter any perceived threats by providing necessary or

required powers to the Indian LEAs and military.

Unlike the world community, not a single legislation

attempt was made after 9/11 to prevent and obstructterrorist activities on Pakistani soil. This negligence

provided opportunities to the global terroristorganizations 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 LEAs and

intelligence agencies failed to check these terror networks preemptively due to the absence of any clear

anti-terrorism policy and adequate legal tools to avertthe plans of these terrorist groups. But that wasjust the

beginning!

Consequently, when the hostile intelligence agencies(CIA/RAW) established cloak-and-dagger terror

networks in Afghanistan and FATA, which were

completely asymmetric and irregular in nature andoperation, the shortcomings of the Pakistani laws for the purpose of internal security were exposed

completely. Pakistan is under attack, but ironically, thePakistani government, the institutions and the

lawmakers are still debating over how to improve thelaw 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 build responses is not there among the political elite of the country, which is too busy in

plundering, looting and power-grabbing games. Thereis simply no political will or capacity to undertake this

challenging task!

The brief history of anti-terrorism laws in Pakistanvividly 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 thislaw, but this definition is certainly not going to help in

coping with the threats of the ongoing multifaceted

India:

State of the Pakistani Anti-TerrorismLegislation:

'It appears that the events of 11th September were,

in the first months following this date, particularlyused as a trigger to consolidate policies, measuresor legislation, which had been waiting for a long

time for enough support, but found onlyacceptance in the joint resolution to combat

terrorism after 9/11.'

POTA – Post 9/11 tool for Indian forces to suppress the Ka



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covert war. Apart from that, special Anti-TerrorismCourts (ATCs) were established along with the Anti-

Terrorism Appellate (ATA) tribunal. But it wasdeclared unconstitutional by the Supreme Court of

Pakistan right after it was enacted for the first time in1997. Instead of addressing the SC's objections

through amending the conflicting articles, thegovernment of that time issued the Anti-Terrorism

(Amendment) Ordinance. Apart from being a subjectof 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 weredisbanded and the appeals against the decisions of theATCs were henceforth to be filed in the respective

High Courts. Also, restrictions were placed on theearlier act's provisions regarding thetrial in absentia to

accord with regular legal procedures. After thesechanges, the law and order situation worsened once

again, particularly in Sindh. The Governmentintroduced 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 newcrime with the name of "civil commotion" was also introduced to punish

anyone involved in creating internal disturbances inviolation of law or intending to violate the law,

commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching/lifting, damage toor 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 to create a threat tothe 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 the opposition(current government) filed cases against the validity

of this ordinance. The ordinance was declared as

unconstitutional once again as it had no legal authorityand effect according to the SC. Later on, the ArmedForces (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 Actwas amended to authorize the establishment of ATCs

all over the country. But these decisions failed becauseof thefollowingfactors:

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 theconviction of terrorists, that is the ‘law of

evidence’. It is still based on accounts of eyewitnesses instead of investigating the cases

on a scientific basis. Due to the prevailingsense of insecurity, eyewitnesses often do not

come forth to identify the terrorists, whichmakes their acquittals from the courts easy.

LEAs had no authority to preemptivelymonitor, search and investigate the suspects

without obtaining legal warrants.

Appeals against the decisions by the ATCswere to be made in the civilian courts, which

defeated the entire rationale of establishingATCs.

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 18thAmendment, passed last year, which disallows the president from rectifying the ordinance again. On the

other hand, the country continues to suffer widespreadterrorism and invites frequent comments from the

western media regarding its failure in ensuring peaceand maintaining law and order. The epic judicial and

legislative failure has brought about the prevailingsituation:

1.

2.

3.

Complete judicial malfunctioning --

the Outcome of complete legislative failure!



32

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Anti-terrorism laws are outdated. They weremade before 9/11 and the initiation of the 4GW

against Pakistan, hence they do not provideanyassistance to the armed forces in their fight

against the enemy’s 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 theterrorism 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 terrorisma n d i n su rg en c ie s. T he e ne my ’s w ar

combatants, released by the civil courts, rejointheir cadre to launch fresh attacks against the

security forces, making their counter-insurgency 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 andBajaur, were released by the civil courts due to

inherentlegal flaws in the ‘law of evidence’.

Not a single terrorist has been convicted andsentenced to death for the last decade, and the

possibility of doing so would remain next to

none unless the current laws go through acomplete overhaul according to the needs of

irregular urban warfare.

The Pakistani parliament has failed to come upwith 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 thenational law makinginstitutions.

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

the compromised media elements to malignthem. Media trial of the security forces after

the recent incidents in Quetta and Karachi isthe clearest manifestation of this assertion.

The current government established National

Counter-terrorism Authority (NACTA) in 2009, withfunding 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 therealization 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), for their own political goals, are hell-bent on blaming the

armed forces and the intelligence agencies. When thecountry is bleeding, and the security forces' personnel

are giving the ultimate sacrifices daily, this behavior iscompletely treacherous! But again, there is no law to

put this utter nonsense to an end. More unfortunately,there is no realization, even on the 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 armedforces.

This judicial failure has put the security forces and their

counterinsurgency ops in a very difficult position on thelegal axis. If they eliminate the terrorists and insurgents

in these operations then the media, the HR organizations,and even the courts, start raising questions about the

legality and authority of such operations and if they

Enemy’s Irregular Combatants rejoin their cadres

after seeking acquittals from courts



33

bring the terrorists to the courts, the terrorists get easy

acquittals and rejoin their cadres to resume their attacksagainst the state and the armed forces.

The Anti-Terrorism Act of 1997 is vague and cannot

guarantee adequate legal support to the armed forces. Not only has this Act been unable to provide enough

authority to the LEAs and intelligence agencies in thecurrent chaotic security situation, it also has no

effective protection for the witnesses and judges interror-related cases. Finally, it has no provision or

penalty for the political entities having links withterrorists and foreign-funded mercenaries. These are

the serious shortcomings and loopholes in thePakistani anti-terrorist laws, which must be plugged in

by formulating strict but consensually constituted

laws at the federal level and their implementationmust be adequately ensured. A few recommendationsare given below:

The Government must declare state of war/

emergency in the country. Invoking of war-time laws, and establishment of military

courts to convict and punish the enemy’s war combatants, must be part of this declaration.

Civilian courts have failed in coping, evenwith the everyday law and order criminals, and

convicting the war criminals and traitors is outof question given the present state of these

courts.

Anti-terrorism laws must be revised, and theculprits involved in creating mayhem in the

country must be categorized as 'enemy’sirregular war combatants', regardless of their

nationality and adherence. These enemiesmust be tried in the military courts under the

military acts of 1952, 1953 and 1961. This is a

must-do task, and is the only short-termsolution to the current problematic securityscenario.

Parliament and legal experts must redefine the

term 'terrorism' at the national level. This is afundamental requirement in the current

situation in order to formulate any nationalsecurity policy. This epic failure of the

Pakistani legislative institutions must be put to

an end now. It must be done NOW.

Police and other LEAs in troubled areas

(NWFP and restive parts of Baluchistan) must be directly under the military command to

enhance the operational efficacy, robustnessand cohesion. Pakistani police is not well

armed or trained to provide adequateassistance to the security forces against the

enemy’s irregular war combatants in the urbancenters.

Media laws regarding terrorism and war must

be revised as well. A sinister and systematiccampaign against the country's armed forces

has been launched by some media outlets.Though PEMRA has taken notice of some

channels involved in this dirty game, but the

damage has been done. New laws must beintroduced to avert this Psy-Ops of the enemy.Media must not be allowed to discuss the

proceedings and the developments of anti-terrorism and counter-insurgency operations,

and their related cases,without prior approval.

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, visiblelacunas prevail in Pakistan's anti-terrorist laws due to

t he compl et ely conf us ed and compr omis edlegislative. The nation and the armed forces would

continue to suffer and bleed in the presence of thecurrent anti-terrorism laws. Tactical victories against

the enemy’s irregular war combatants would remainfutile if these gains are not nurtured at the

administrative and political levels and this is exactlywhere Pakistan needs to act decisively and swiftly.

Peace-time laws cannot deliver during wars; the

sooner the nation and leadership understand this factthe better it would be. Till the formulation of acomprehensive judicial policy as per the national

security requirements, military act must be invokedimmediately 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 forPakistan.

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Recommendations:

Conclusion:

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war on terror and collapse of judicial syetem

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