After marathon brain storming sessions the government has come up with a counterterrorism strategy that has two new features and the rest is July 2013 wine. The July strategy was not effective because it was not implemented. The government got bogged down in saving itself from Imran Khan and his threats, which nearly dethroned it. Terrorism, our most serious threat, was ignored and the army took the initiative in its own hands. Two significant additions in this policy in order of priority are: for the first time it is being said that no militant groups will be allowed in the country, whether they are fighting against the state or are waging jihad against any country in the world. The second new element is the controversial decision to amend the Constitution to establish military courts to try the terrorists.
For a sceptic like me, who has been writing that no civilised country can afford to establish and nurture armed jihadis of all hues to further its foreign policy and expect peace in the country, government statements that all militant groups will be packed up are too good to believe. I mentioned in my last article, ‘Peshawar carnage implications’ (Daily Times, December 22, 2014), that General Sharif’s visit to Kabul to demand action against the Tehreek-e-Taliban Pakistan’s (TTP’s) leadership hiding in Afghanistan may be an indication that at last Pakistan has accepted that the policy of supporting the Afghan Taliban insurgency is counterproductive and dangerous for Pakistan. However, the real, earnest test of the new policy will be shutting down India-specific jihadi organisations like Lashkar-e-Tayyaba, Jaish-e-Mohammed and scores of other outfits.
The government has also resolved not to allow banned organisations under new names and to stop the leaders of these organisations from fomenting trouble against neighbouring countries. Will the likes of cosseted Hafiz Saeed and Masood Azhar be contained? Will their hundreds of thousands of indoctrinated jihadi lashkars be de-radicalised? Hard to believe! But if that happens and the army has agreed to rein in these leaders, Pakistan’s strategic culture is changing. Good news for the wretched fellow countrymen who want peace and progress.
Now, let us come to the controversial recommendation pertaining to the military courts. The entire burden of the failure to curb terrorism is being put on the judiciary by the government and the establishment. The main argument in favour of the military courts is that terrorists are acquitted in most cases and, where they are convicted, the long judicial appellate procedures go in favour of the terrorists nabbed by the security agencies. The judiciary and independent legal experts blame the prosecution’s poor presentation of cases. “Inadequate evidence, lack of forensic facilities, witnesses turning hostile fearing accused supporters and legal lacunas makes it difficult even for the Anti-Terrorist Courts (ATCs) to convict the accused,” a retired judge of the superior court explained.
In his paper on ‘Improving the Criminal Justice System — Response to Terrorism’, Justice Maqbool Baqar of the Sindh High Court (SHC) has observed that out of 42 terrorism cases from 2008 to 2011, the ATCs acquitted 25 and convicted 17. Though the Supreme Court (SC) had given clear guidelines in the Liaquat Hussain vs Federation of Pakistan case in 1999 when it disallowed the establishment of military courts, they were never implemented. Had subsequent governments and the superior judiciary implemented these guidelines in the last 15 years, the contentious question of military courts would not have arisen again. It is in order to quote these guidelines even today to stall the decision that all political parties have agreed as a knee-jerk reaction to the 16/12 Peshawar massacre by the terrorists and under pressure of the establishment.
The SC laid down the following guidelines, which may contribute towards the achievement of the objective for which military courts are being demanded by the establishment:
“(i) Cases relating to terrorism be entrusted to the special courts already established or which may be established under the Anti-Terrorism Act, 1997 (hereinafter referred to as ATA) or under any law in terms of the judgment of this Court in the case of Mehram Ali and others Vs Federation of Pakistan (PLD 1998 SC 1445).
(ii) One case be assigned at a time to a Special Court and till judgment is announced in such case, no other case be entrusted to it.
(iii) The concerned Special Court should proceed with the case entrusted to it on a day-to-day basis and pronounce judgment within a period of seven days as already provided in the ATA, or as may be provided in any other law.
(iv) Chalaan of a case should be submitted to a Special Court after full preparation and after ensuring that all witnesses will be produced as and when required by the concerned Special Court.
(v) An appeal arising out of an order/judgment of the Special Court shall be decided by the appellate forum within a period of seven days from the filing of such appeal.
(vi) Any lapse on the part of the investigating and prosecuting agencies shall entail immediate disciplinary action according to the law applicable.
(vii) The Chief Justice of the High Court concerned shall nominate one or more judges of the High Court for monitoring and ensuring that the cases/appeals are disposed of in terms of these guidelines.
(viii) That the Chief Justice of Pakistan may nominate one or more judges of the Supreme Court to monitor the implementation of the above guidelines. The judge or judges so nominated will also ensure that if any petition for leave/or appeal with the leave is filed, the same is disposed of without any delay in the Supreme Court.
(ix) That besides invoking aid of the armed forces in terms of sections 4 and 5 of the ATA the assistance of the armed forces can be pressed into service by virtue of Article 245 of the Constitution at all stages including the security of the presiding officer, advocates and witnesses appearing in the cases, minus the process of judicial adjudication as to the guilt and quantum of sentence, till the execution of the sentence.”
Lastly, at present, the ATCs are understaffed and overburdened. According to Barrister Faisal Siddiqui, “There are 10 ATC judges in Karachi burdened with over 1,850 cases. It is humanly not possible for them to decide cases in seven days. One reason for so many cases is that the ATC is burdened with most heinous crimes, which do not fall in the category of terrorism.”
The writer is the author of What’s Wrong with Pakistan? He can be reached at [email protected]