06 October 2013

The Pakistani Judiciary's Anti-Terrorism Failings

"It’s not terrorism until the explosives blow up."

So said an anti-terrorism judge in Quetta while releasing a terrorist on bail who had been arrested by the Frontier Corps with over 70 kilogrammes of explosives in Pakistan's Balochistan province.

An honest, competent and independent judiciary is in Pakistan's interests. However, if you're not part of the solution, you're part of the problem. When it comes to rising crime, lawlessness and terrorism in Pakistan, the Pakistani legal system, especially the Pakistani judiciary, unfortunately, is part of the problem. Every fruit tree is judged by the fruit it yields. Needless to say, the fruit yielded by the Pakistani judicial system is for all to see.

At a time, when countries and legal systems across the world are further empowering and increasing the capaciy of their intelligence and law enforcement agencies, the Pakistani judiciary is engaged in undermining and limiting the power of Pakistan's intelligence and law-enforcement agencies, who are fighting crime, lawlessness and terrorism with one hand behind their backs (held by the Pakistani judiciary, and particularly the Pakistan Supreme Court). Today, things have come to such a pass that prior to undertaking any intelligence or law-enforcement operation, Pakistani intelligence and law enforcement agencies have to worry about being summoned before the superior judiciary, being insulted and grilled, even arrested and prosecuted, and having their actions overturned. This not only lowers their morale but, more importantly, reduces their effectiveness.

Recently, the Supreme Court ordered the Frontier Corps to be withdrawn from a previously lawless area in Balochistan, which the FC had pacified, on the grounds that the civil administration should deal with the improved law and order situation there. Result: the FC withdrew but instead of the civil administration, criminal gangs, banned outfits and terrorist groups stepped into the vacuum resulting in a rapid escalation of crime, lawlessness and terrorism. This example shows an utter lack of appreciation of the ground realities by the Supreme Court vis-a-vis security matters. Civil government in Balochistan is either non-existent, corrupt or inept. The Supreme Court should have known this, but didn't. In law, ignorance of facts is as unacceptable and dangerous as ignorance of the law.

The irony is that while the Supreme Court is busy ordering the withdrawal of security forces from the restive areas of Balochistan, the inhabitants are increasingly demanding Army rule, which is generally perceived to bring with it greater peace, stability and economic prosperity.

At one time there were nearly 100 Lashkar-e-Jhangvi (LeJ) terrorists in Quetta's jails. The LeJ is notorious for targetting the minority Shia Hazara community in and around Quetta. Yet not a single one was convicted. One by one, they were released by the courts due to lack of evidence.

Two factors contribute towards the Pakistani judiciary's failure to control crime, lawlessness and terrorism: (i) flaws in the Pakistani judiciary's attitude; and (ii) flaws in the Pakistani legal system.

I. Flaws in the Pakistani Judiciary's Attitude

Firstly, the problem lies in the Pakistani judiciary's inherent hostility and cavelier attitude towards law enforcement and intelligence agencies. In order to prove their judicial credentials, or compensate for lack thereof, the Pakistani judiciary overcompensates by being aggressive towards the law enforcement and intelligence agencies. This is also due perhaps to the Pakistani judiciary's underlying sense of collective guilt for, generally, failing to deliver justice to the people of Pakistan for over 65 years. When justice is delivered, it is often too little too late, reminding one of the old adage: "justice delayed is justice denied."

Hostility towards Pakistan's intelligence agencies, armed forces and law enforcement agencies has been a particular hallmark of the hyperactive and suo moto-wielding Supreme Court of Pakistan under Chief Justice Iftikhar Muhammad Chaudhry. A case in point is the Missing Persons' case. Under Articles 4, 9 and 10A of the Constitution of the Islamic Republic of Pakistan, 1973, due process is the fundamental right of every Pakistani citizen and person for the time being in Pakistan. No government agency has the right to arrest and detain any person without due process. No one has the right to kill another unless in execution of a death sentence imposed by a court of law.

However, the State and law enforcement agencies do have the legal right to kill in self-defence. They do have the legal right to kill when under attack. They do have the legal right to kill when war is being waged on them, on the Pakistani people and the Pakistani State.

Every murder or death in Balochistan cannot be blamed on law enforcement agencies, which the Supreme Court seems to be doing. Balochistan is a tribal society where tribal vendettas are common. People were being murdered in tribal vendettas in Balochistan before Balochistan even became part of Pakistan. Are we to believe, as perhaps the Supreme Court believes, that all tribal vendettas and murders have come to a halt in Balochistan after the creation of Pakistan?

Also, foreign-backed terrorists organizations like the Balochistan Liberation Army (BLA) and the Balochistan Republican Army (BRA), founded by the KGB in the 1980s and now being funded and supported by Indian and Afghan intelligence agencies (and some claim even the CIA), are carrying out ethnic-cleansing and terrorism through targetted killing of non-Baloch and pro-Pakistani Baloch people in Balochistan. Even those killed and dumped by the BLA or BRA are blamed on the intelligence agencies. In such circumstances, where foreign powers are engaged in a murderous and bloody great game in this region, for the Pakistan Supreme Court and judiciary to blame Pakistan's own intelligence and law enforcement agencies for every death in Balochistan is highly irresponsible, reckless and dangerous. The Inter-Services Intelligence (ISI) is Pakistan's first line of defence, albeit an invisible one. Yet the ISI has become the favourite punching bag of the Supreme Court. There have been occasions when statements coming from the Supreme Court could have been been mistaken for those coming from the Indian Foreign Ministry. No other apex court in the world interferes with and undermines national security in the manner that the Supreme Court is doing. Never in US history has any CIA official been summoned by the United States Supreme Court. Under the Supreme Court, however, summoning of ISI officials is a common occurrence. This is also dangerous because it reveals the identity of ISI officials, which ought to be held secret. In 2011, the US withdrew its CIA Station Chief in Pakistan when his identity was revealed in a case filed in the Pakistani courts.

A glaring example of the Chief Justice exceeding his constitutional authority and limits occurred on 5 November 2012 when, speaking to the National Management Course in Islamabad, Chief Justice Iftikhar Muhammad Chaudhry said that the Supreme Court possessed “absolute authority” concerning matters of national interest, adding the concepts of national security and stability had changed as arsenal strength could not assure it anymore. The CJP when on to add, "Gone are the days when stability and security of the country was defined in terms of number of missiles, tanks and armory as a manifestation of hard power available at the disposal of the state.”

In other words, the Supreme Court was assuming for itself the role of the ultimate arbiter of Pakistan's national security. This statement by the Chief Justice was unconstitutional, being contrary to the scheme of the Constitution of the Islamic Republic of Pakistan, 1973, under which the constitutional role of the Supreme Court is limited to that of interpreter of the Constitution and ultimate adjudicator of disputes, and not the ultimate authority on national security. The Pakistani Constitution does not envisage nor confer upon the Supreme Court the responsibility for Pakistan's defence and national security. Indeed, under the Constitution, the Supreme Court does not figure anywhere in matters of defence and national security. Only three institutions should collectively determine national security: (i) Parliament; (ii) the Federal Government; and (iii) the Armed Forces.

What then to make of this statement by the Chief Justice? Firstly, the Hon'ble Chief Justice seems to have forgotten a key judicial norm that judges do not speak other than through their judgments. The CJP and all judges should refrain from making speeches and public appearances. To do so is against judicial norms. Under the Supreme Court, an alarming new trend is the issuance of press releases by the Pakistan Supreme Court. Why is there a need for the Supreme Court to issue press releases? The only thing a court should release, indeed be allowed to release, are judgments.

Earlier on the same day, in a speech to army officers at General Headquarters, Army Chief General Ashfaq Pervez Kayani had stated: “No individual or institution has the monopoly to decide what is right or wrong in defining the ultimate national interest.” Referring to off-the-cuff remarks made by Supreme Court judges from the bench during the trial of cases, Kayani stated: "As we all are striving for the rule of law, the fundamental principle that no one is guilty until proven, should not be forgotten,” he said. "Let us not prejudge anyone, be it a civilian or a military person and extend it, unnecessarily, to undermine respective institutions." Kayani added that "any effort which wittingly or unwittingly draws a wedge between the people and Armed Forces of Pakistan undermines the larger national interest."

Kayani's remarks were clearly a well-deserved rebuke to the Supreme Court by the Army Chief. However, it was not just the Army that felt that the Supreme Court was exceeding its constitutional jurisdiction. In an article titled "Courting Trouble", the renowned and widely respected Pakistani journalist, Syed Talat Hussain, rightly observed:
"The Supreme Court of Pakistan seems to be tying itself in knots. Some recent developments suggest that the learned judges’ exuberance is creating legal, political and administrative complexities to which even their collective wisdom might not provide workable solutions."
He went on to observe that the Supreme Court's handling of the situation in Balochistan appears "to have raised fundamental questions about the implications of the judiciary’s handling of sensitive challenges."

The Missing Persons' case is a prime example of the Supreme Court engaging in reckless popular grandstanding and playing to the public gallery at the expense of national security and, indeed, justice. Chief Justice Iftikhar Chaudhry's unbridled and excessive exercise of suo moto powers, particularly vis-a-vis interference in executive authority and law enforcement functions is tantamount to an abuse of process and authority as well as judicial misconduct.

II. Flaws in the Pakistani Legal System

Pakistan's legal system, particularly its criminal justice system, is based, by and large, on the British colonial legal system, which itself was based on the English legal system. On paper, Pakistan has one of the world's most sophisticated legal systems. Over the years, Pakistan has attempted to improve an already sophisticated legal system by cutting and pasting laws from developed Western countries.
(i) Corruption and inefficiency

Like parliamentary democracy, which requires a literate population to function successfully, a sophisticated legal system requires a sophisticated administration to deliver. For example, Pakistan's evidentiary laws presume an effective, competent and honest police investigation, evidence-gathering and prosecution system. Tinker with this presumption and the system fails to deliver. Pakistan lacks an effective and honest police force and has a flawed evidence-gathering and forensics system and a weak prosecution. All this results in a general failure to prosecute terrorists successfully.

(ii) Weak laws

Also limiting anti-terrorism investigators is the Anti-Terrorism Act, 1997 and the Qanoon-e-Shahadat (Law of Evidence) Order, 1984 that make police testimony inadmissible, and in the absence of other witnesses, any case against terrorists collapses. This law fails to take into account that when law enforcement agencies raid a terrorist hideout, the only witnesses are the law enforcement personnel.

Pakistan's anti-terrorism laws are weak and its anti-terrorist courts operate like mainstream courts, applying the same standards of evidence that ordinary courts apply. This defeats the very purpose of setting up anti-terrorism courts.
The Pakistani legal system's failure in identifying and bringing terrorists to justice boosts the morale of terrorists.

A judge cannot escape responsibility, indeed, culpability if he unleashes a murderer of innocents onto civil society who then goes on to kill innocents again. Unfortunately, this is a daily occurence in Pakistan's flawed judicial system, where criminals and terrorists are being unleashed upon society because the judge didn't seem to think that the prosecution had proved its case.

The Supreme Court of Pakistan would do well to heed the voices of the Shia Hazaras rising from the Quetta Valley and the Pakhtuns rising from the valleys of the Federally Administered Tribal Areas. They are demanind a state institution to step in and rescue them from their lawless environments and it's not the Pakistani judiciary they're calling.

Postscript: After the above article was published, Dawn newspaper, in its 19 October 2013 edition, reported that 722 suspects rejoined terrorist groups after acquittal.

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