An inept response

The writer is a lawyer based in Islamabad.

The Pakistan-based Taliban's indiscriminate religion-inspired war against the state in concert with other terror groups poses a threat that no one really knows how to deal with. The war raging in our tribal areas as well as our cities is multi-pronged and has ideological, strategic, political, socio-economic and legal dimensions.

The declared strategy of the Pakistani government toward this war is to take the security operation underway to its logical end with complete resolve and, once the physical control of the Taliban country is reclaimed, consolidate military gains with economic investment and political reforms. The military is essentially involved in a fire brigade operation struggling to put out the fire where it is raging the most. The proposed but missing political and economic tiers of the strategy are meant to win the hearts and minds of people, and prevent futurerecruitment of the youth by the Taliban and other terror groups.

But given that the Taliban and other terrorist outfits functional in Pakistan comprise our own citizens, what will we do about those who survive this military operation including the operational and sleeper cells that are already spread across the country? While an effective military operation can limit the ability to spread violence and terror across Pakistan with impunity and an effective socio-economic and political rejuvenation process can diminish the appeal of ideologically inspired terrorism, we cannot underestimate the need for effective traditional law enforcement to prevent and address acts of terror being carried out across Pakistan. And it is this necessary dimension of fighting terror within Pakistan through traditional policing and law enforcement where our response has not just been deficient but completely non-existent.

As anchor Dr Moeed Pirzada emphasised in a recent discussion, countries that are able to control the movement of men,

material and money within their territories and across their borders are better placed to fight the threat posed by terror groups. Pakistan is not just lagging behind on this count but seems completely oblivious to the urgent need to put in place the legal framework and implementation mechanisms to control the movement of men, material and money within Pakistan. Furthermore, the government has made no effort to evaluate the multiple contours of our criminal justice system to ensure that it can effectively take cognizance of the crime of terrorism. Pakistan has been infested with extreme violence and terror for more than five years now and we have yet to hear about terrorists being caught, tried and convicted by our courts of law.

If our criminal justice system lacks the ability to punish terrorists, insurgents and criminals, are we not rendering the concept of rule of law meaningless? We have seen Maulvi Abdul Aziz of Lal Masjid walk free despite public knowledge that under his supervision the mosque was turned into an armed fortress, and the Lal-Masjid brigade not only harassed residents and shopkeepers in the neighbourhood but also killed at least five soldiers. Similarly, we continue to hear the demand from India and the US to prosecute Hafiz Saeed, and while the government seems willing to do so, it is unable to bring any formal charges that stick. If Hafiz Saeed is mixed-up in terror plots, he must be prosecuted and convicted. If he is not, his name should be cleared and he should not repeatedly be put under preventive detention merely due to allegations and pressure by foreign countries.

The idea is not to initiate a witch-hunt in the name of law enforcement and eradication of terror, but to make due process of law meaningful and our penal justice system functional. If our justice system does not work, it will either encourage security forces to circumvent due process and indulge in extra-judicial killings or allow criminals and terrorists to go scot-free and remain a menace to society. Given that the terrorists we are fighting are our own people -- even if partly supported and financed by our external enemies -- it is crucial that the state's response to this threat be framed within the realm of law. We are presently failing to apprehend and convict terrorists and criminals because (i) much of our law-enforcement activities and security operations are undertaken beyond the zone of law as our legal framework is deficient in fundamental ways, and (ii) to the extent that laws exist they are not being effectively implemented.

Our legal framework does not adequately cater for the army undertaken security operations within the country. Article 245 of the constitution authorises the armed forces to "act in aid of civil power when called upon to do so". But there is no detailed legislation that delineates the mechanics of how the armed forces will function while acting in aid of civil power, how the forces will arrest and detain people, and how they will gather evidence and facilitate prosecution when the accused are presented before a court.

Sections 4 and 5 of the Anti-Terrorism Act 1997 also provide for armed forces acting in aid of civil power and contemplate that any such operation will be subject to the Code of Criminal Procedure1898. But the armed forces are not trained to carry out internal security operations with a view to apprehending and convicting citizens. For example, during the Swat operation, did the soldiers document recovery of weapons in a manner that would be admissible as evidence in a court of law? Will officers appear before courts as prosecution witnesses? If not, will suspected terrorists not be able to walk free merely because due process formalities have not been followed?

Another huge component of our security infrastructure that functions beyond the realm of law is intelligence agencies. There is no legislation or legal framework that clearly defines the scope of work of our intelligence agencies, the authority that each agency has and effective mechanisms of supervision to ensure that authority vested in the agencies is properly regulated and not abused. This creates a two-tier problem. One is the fear that intelligence agencies have the ability to function as uncontrolled monstrosities and abuse the vast powers not supported by law that they have assumed as a matter of practice.

The second is the limited ability to effectively use the extremely crucial information gathered by these agencies to prosecute criminals because the process through which such information is gathered does not have the backing of law. For example, if there is no legal mechanism to seek permission to wire-tap citizens and record conversations, the utility of such recordings in a court of law remains dubious. The problem needs to be resolved by fixing the structure rather than getting into territory wars over who controls a deformed structure.

Then there are laws such as the Anti-Terrorist Act and the Security of Pakistan Act 1952 that conceive the idea of controlling and suspending activities of proscribed and subversive organisations, but do not take the concept to its logical conclusion. The law does not automatically produce any serious penal consequences for an organization that is declared subversive or proscribed. The state is not obliged to identify the members of such an organisation, prevent them from reorganising themselves under a new banner, prohibit them from purchasing property, renting houses and vehicles, etc.

The deficient legal framework thus makes the exercise of declaring an organisation proscribed or subversive largely meaningless. And finally there are laws that exist on statute books but are just not being enforced. The Explosives Act 1884 is one such law that mandates that the manufacture, possession, use, sale, transport and importation will be subject to government license. If this law was being properly implemented, terrorists would not get their hands on hundreds of kilograms of explosive material at will.

If we intend to control the menace of terror wreaking havoc across Pakistan, we will need to resuscitate traditional law enforcement mechanisms, bring all its components within the realm of law and ensure that our criminal justice system is functional. Without acquiring the ability to exercise effective control over men, material and money within Pakistan, our fire-fighting operations will only have limited utility.



Email: sattar@post.harvard.edu