War on Terror and Collapse of Judicial Syetem
-
Upload
ehtashamali1 -
Category
Documents
-
view
222 -
download
0
Transcript of War on Terror and Collapse of Judicial Syetem
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 1/727
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
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 2/7
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 3/7
29
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
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 4/7
30
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
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 5/7
31
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!
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 6/7
32
<
<
<
<
<
<
<
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
8/6/2019 War on Terror and Collapse of Judicial Syetem
http://slidepdf.com/reader/full/war-on-terror-and-collapse-of-judicial-syetem 7/7
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.
***********
Recommendations:
Conclusion:
1.
2.
3.
4.
5.