Countering Terrorism: Legal Challenges
Although Pakistan’s military operations against terrorism have been remarkable from a military standpoint, overlapping laws, poorly drafted legislation and troubled court system has proved to diminish their success. The legal nature of operations in the Federally Administered Tribal Areas (FATA) is indeterminate, as it is yet to be resolved whether the operation is a non-international armed conflict or not. Ministry of Foreign Affairs has on many occasions rejected International Committee of the Red Cross’s (ICRC) access to the scenario, classifying it as a counter-insurgency operation.
The most acute challenge that the operation faces is regarding arrests and detention of the terrorists. Section 61 of the Code of Criminal Procedure (CrPC) provides a detainee the right to be produced before the court within 24 hours of arrest. Having said that, the section needs some attention. Article 10 of the Constitution of Pakistan articulates that section 61 applies to situations where there is no armed conflict and in which law enforcement and judiciary are operating jointly. Although Action in Aid of Civil Power (AACP) Regulations do distinguish between the detainees, they have proved to be of less help. Whether complying with section 61 applies to operations in FATA is blurry. It can be presumed that the situation in FATA does resemble a conflict and the infrastructure of law enforcement and judiciary is not working effectively, thus making Article 10 unexecutable. If armed forces strictly adhere to the 24-hour constitutional mandate, then this would result in releasing the terrorists, ultimately limiting the progress of the military operation and rendering it pointless. This has led to a large number of terrorists in securing acquittals due to procedural constraints that law bestows on the agencies (most of the terrorists are held for more than 24 hours, court cannot hold the evidence and confessions valid because their fundamental rights have been breached).
The judicial system of Pakistan has gone haywire. Supreme Court alone had 20,000 cases in 2009 and all of the High Courts in Pakistan are host to over 210,000 pending cases. With every civil judge bound to hear 100 cases per day, it is doubtful whether the system would be able to try terrorists effectively. This also explains the reluctance of armed forces to hand over captured terrorists to civilian authorities. Courts originally established under the Anti Terrorism Act to hear cases regarding state terrorism have turned out to be an apparatus for personal enmity. Investigation officers (IOs) on the other hand are also overburdened with cases. They are often not given reasonable time to collect sufficient evidence. Perhaps the most disturbing part is that IOs are mostly low ranking police officials who lack essential skills and training. Measures to protect judges and state witnesses are also minimal, which certainly highlights the reluctance of judges to participate in terrorist trials (due to assassination attempts on both).
In addition to legal complexities and a weak legal system, legislation regarding conduct of military operation is minimal. No federal or provincial enactment regulates the conduct of counter-operation. Pakistan Army Act 1952 does entail some code of conduct but it is mostly directed towards military’s internal management. According to Lauterpacht Center for International Law, Pakistani military has conformed to all norms of international humanitarian law. In June 2011, the body of Hanif Baloch, who was captured by security forces, was found in Lasbela with marks of brutal treatment. According to a report of Amnesty International in 2012, Abdul Ghaffar Lango (human rights activist), whose dead body was discovered in April 2011, had been abducted by men accompanied by paramilitary Frontier Corps. Such gruesome incidents certainly question the legitimacy of operations in the eyes of legal commentators as well as the populace. Furthermore, it damages the excellent repute Pakistan Army enjoys in terms of its professionalism.
In order to optimize the military operation, Pakistan surely needs to initiate reforms in its legal system. Loopholes in law that provide benefit to the terrorist and frustrate the system must be addressed. Terrorism has affected Pakistan in the worst manner and has deteriorated its economy to a very large extent. The gravity of the matter demands comprehensive legislation to increase transparency and effectiveness. Terrorism cannot be eliminated solely by the use of force – a strong judicial system is of equal importance. So far Pakistan military has been more than accurate in countering insurgency. Unfortunately, civil authorities have been less satisfying than visioned. If Pakistan needs to eliminate terrorism from its roots, the legal framework has to be strengthened.
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excellent piece of writing.