Pakistan, long perceived by the outside world as the epicenter of al Qaeda’s operations after 9/11, has been one of the biggest victims of terrorism itself. It has lost more than 57,000 people including more than 20,000 civilians to terrorism since 2003. Even with this macabre background, the Dec. 16, 2014 attack on the Army Public School and College in Peshawar, Pakistan, that killed more than 150 people, including 133 children, shocked Pakistani society with its brutality. Many observers termed it Pakistan’s 9/11. Jolted by this attack, the political elite made drastic changes in Pakistan’s counterterrorism laws establishing special military courts for terrorism offenses through an amendment in the constitution.
As a Carnegie fellow at New America, I studied the legal and constitutional changes in Pakistan’s counterterrorism legal regime. In a newly-released report “Changes in Pakistan’s Counter-Terrorism Legal Regime,” I relay my findings. Even though the amendments are meant to attain the commendable goals of reducing delays and ensuring better security for judges trying terrorism cases, the legitimacy of the process has suffered from stripping away the traditional protections like an open trial, right to counsel, and burden of proof on the prosecution that were always afforded the accused before these amendments. The issues of legal reform, investment in law enforcement capacity, and ensuring adequate coverage of areas across Pakistan have been ignored. Without addressing these concerns, the constitutional amendment will fail to deliver the desired results.
Prior to the recent constitutional amendments, Pakistan’s counterterrorism legal regime was dominated by the Anti-Terrorism Act 1997 (ATA). This was a special law that was a product of dissatisfaction with the performance of the ordinary courts of law and enacted with the hope that terrorists would be adequately punished. These hopes were dashed. In practice, fewer than 20 percent of cases registered under the ATA resulted in convictions.
The ATA suffered from several problems: its failure to cover new types of terrorism like suicide attacks or group attacks, a vague definition of terrorism that makes it susceptible to abuse at the hands of law enforcement agencies, an overdependence on eyewitness accounts, which are impossible to find in the absence of a witness, and a judge protection program, and dependence by courts on quaint rules of procedure more suitable for a rural society living in the 19th century.
For example, Pakistani courts gave undue weight to the narration of events in the police’s First Information Report (FIR) instead of the results of the more-developed police investigation. While in other countries, a FIR would be treated as a starting point for an investigation, in Pakistan — due to judge-made jurisprudence over the years — the FIR has become an almost necessary element for conviction. Similarly, witnesses are required to go to the prison for the identification parade and cannot do it in the police station. They have to identify the alleged perpetrator in the presence of a magistrate and actually tell the magistrate by touching the shoulder or arm of the criminal. This means that their identity is fully known to the criminal.
These problems are compounded by the fact that a large part of the country, including the Federally Administered Tribal Areas (FATA) and most of Balochistan province, has no regular law enforcement and court system in place. As a result, these areas are prone to becoming sanctuaries for terrorist organizations. Fighting terrorism there has been a matter of sporadic military operations or extrajudicial police killings that address the symptoms but not the underlying causes, rather than a matter of investigative police work.
The constitutional amendments passed in January sought to address this insufficiency. The practical impact of the legal changes is that terrorism cases have been taken out of the jurisdiction of the civilian courts of the country and placed under the jurisdiction of the Army’s Field General Courts Martial. As a result, the rights afforded under the constitution to any person accused in Pakistan’s criminal justice system would not apply in such cases. The Army Act that was originally meant for regulating the conduct of employees of the armed forces has been changed and has converted the army tribunals into criminal courts of general jurisdiction for all terrorism cases.
On Apr. 2, 2015, the official spokesperson for the Pakistan army announcedthat seven terrorists had been sentenced by a military tribunal established under the Pakistan Army (Amendment) Act 2015. Six of the men weresentenced to death while the seventh was sentenced to life imprisonment. Since the proceedings of the trials were not open to public, it is not clear where the trial was conducted and which procedural law was adopted for the trial. Legal experts and media and civil society organizations had already expressed skepticism and dismay at the secretive conduct of the trials.
The amendments have been challenged in the Supreme Court of Pakistan by the Lahore Bar Association and several other applicants on the grounds that they are unconstitutional. A full bench of the Supreme Court has commencedthe hearing on the merits of the challenges. These petitions challenge the amendments on the grounds that they violate several fundamental rights granted by the constitution like the right to due process of law, equal protection of laws, and right to a fair trial. The other leg of the argument is that these amendments have altered the basic structure of the constitution by taking away the jurisdiction of the superior courts of the country as courts of appeal.
Regardless of the outcome of the legal battle, the legal changes represent a quagmire of bad policymaking. The role of the armed forces has been increased in the present campaign against terrorism, while the role of the civilian institutions has been weakened. This trend is an admission of failure by the political leadership and signifies a lack of a will to reform the legal and judicial system. The larger question of reform of the legal regime of counterterrorism and the need for adequate investment in civilian law enforcement has been left hanging in the air. The issues of due process of law, of a fair trial, and adequate legal guarantees remain unaddressed in the rush to make changes which would affect the legitimacy of these amendments.
Pakistan’s leadership needs to come up with an effective legal response. Ensuring adequate legal representation, open court trials as far as possible, transparent rules of procedure, and regard for due process requirements is an immediate necessity. On the other hand, effective legislation that not only brings the substantive law into the present century but also fixes the procedural loopholes that allow interminably long trials and even longer rounds of appeals is also the responsibility of the parliament and government. Pakistan’s political leaders must ensure capacity enhancement, development of specialization, and operational autonomy for the civilian law enforcement and prosecution functions in the country. The path to Pakistan’s long-term stability and growth lies in addressing these thorny problems. This is the area where all well-wishers of the country should seek urgent action from the government and parliament of Pakistan.