Pakistan and its flawed anti-terrorism laws
Failure of the prosecution in bringing to justice arrested terror suspects is boosting the morale of the Taliban and other groups. The ease with which the terror suspects are acquitted may encourage more terror mayhem. It may invite a sectarian backlash to the dismay of the government in Islamabad.
Pakistan has a very chequered record when it comes to the strength and ability of its Judicial System. Historically the judiciary has been used as per the wishes of the regime in power, whether democratic or dictatorship. This subjective and blatant use of the judiciary has many a times weakened the very arm of the regime which is enabled to punish wrongdoers. Military dictatorships have amended the constitution to suit their preferences and these amendments provided the loopholes for many criminals to escape punishment. The judiciary, on the other hand, has repeatedly sanctioned military interventions and constitutional amendments that have fundamentally altered the legal and political system and undermined judicial independence.
It is these statutory loopholes that are now helping terrorist groups and individuals to walk away unpunished. There have been many cases which have seen the accused being acquitted because of a lack of evidence or poor trial.
Since 9/11, there have been many terrorist attacks in Pakistan where the targets have varied from prominent political leaders to foreigners and from government or army structures to shrines and residential areas. The major reason driving terrorism in Pakistan is the government and army’s association with the war on terror. The country’s internal security forces have arrested many people who are connected with these attacks. Most of them have been acquitted by the courts, though.
The judiciary has been regularly blamed for being lenient while handling the terrorist cases. The government too has taken a backseat and placed the onus on the courts. The fault does not lie solely with the judiciary. The judicial system has never been completely free and till date it continues to underperform, especially when it comes to cases related to terrorism.
The working of the judiciary in Pakistan is hampered by many factors and is also severely flawed. There are several reasons as to why terrorists and suspects are acquitted by the courts. Most important reason is the Anti-Terrorism courts have been virtually transformed into ordinary courts. Another major contributory factor is failure of the prosecution to present the accused in the court on the day of hearing. Listed below are some major terror attacks or high profile arrests, police progress and legal status.
Army operations in Swat and other hotbeds of terrorists have led to the arrest of hundreds of people. These people are still in custody without being produced in court, which is in violation of the fundamental rights enshrined in the Pakistani Constitution. Under the law of the land, Anti-terrorism Courts have to try these accused on a daily basis and are duty bound to decide the case in seven days.
The working of these Anti-terrorism Courts is stymied severely by the verdicts of the Supreme Court of Pakistan. One of the apex court rulings diluted their special status and virtually converted them into courts for trials of heinous offences. And these specialized courts are now dealing with cases which should be dealt by regular courts. ATC, thus becoming severely dysfunctional, Pakistan’s anti-terrorism law has made many of the accused rot in behind bars as under trials for very long periods.
Consider the case of Muslim Khan, the spokesman for the Swat Taliban. He was nabbed on September 10, 2009 along with a number of other Taliban commanders. Seven months on and he still has not been produced before any court of law. But interestingly, on January 31, 2010 a special Anti Terrorism Court in Malakand Division declared Muslim Khan a proclaimed offender along with several others and issued warrants for their arrest. The warrants are yet to be executed, and Muslim Khan is still to be produced before a judge.
Another reason for the Anti-terrorism law failing to deliver results is poor prosecution. The police cases suffer from absence of sufficient evidence and lack of proper witnesses.
The Marriot Bombings (2008) is glaring example. The prosecution charged four persons- Rana Ilyas, Dr Muhammad Usman, Muhammad Hameed Afzal and Tehseen Ullah Jan with planning and abetting the suicide attack that had left at least 60 people dead. As many as 83 witnesses were brought before the court but none of them deposed against the accused. The prosecution initially named 128 witnesses but only 83 recorded their statements. Nine witnesses died during the trial period. Five foreigners had left the country and did not respond to summons. The rest did not appear in the court.
The Marriot Bombings trial also saw the prosecution present a poor case with conflicting details with regards to the accused and other people who were absconding. This enabled the defense to pitch for acquittal and the judge ordered the release of the four accused.
The acquittal rate in Pakistan is very high. The period between 2001 and 2003 saw a total of 333 arrests. Only 38 of them were convicted and the rest were acquitted. In 2009 as many as 629 terrorism cases came before the Anti-terrorism Courts (ATCs) in Punjab. Suspects in as many as 471 cases were acquitted. 
A major factor for the ATC failure is the lack of transparency and cooperation between various organisations in bringing the guilty to justice. Many security agencies are busy trying to apprehend terror suspects and solving the cases. The Police are normally helpless when it comes to filing cases against people accused of abetting terror attacks. The police are mainly used as ‘pick-n-drop’ service of terror suspects.
Police usually arrest a terrorist on a tip-off from intelligence agencies. Once they have caught the accused, they are supposed to hand over the suspect to the intelligence agencies and there stops the police procedures. They are not able to compile and register a proper case in the court as the agencies do not share the required information with them. Since the accused is handed over to the intelligence agency even before a proper interrogation session, the police forces end up with little or no information which could lead to prosecution.
The powers of the Pakistan Police are very limited when it comes to handling terror suspects. They are not provided proper data bases with regards to these suspects nor are they allowed to tap phones of any suspects. All this falls under the jurisdiction of the intelligence agencies, which prefer to work at their own pace and according to their own will.
Primarily, the selective behavior behind the handling of terror suspects is because of the fact that most of the terrorist organizations are the products of the intelligence agencies and were at one time valuable assets for them. If proper information is provided to the police and the prosecution, there is a definite chance that evidence many lead them back to some important members of these agencies. Hence many a times, the agencies or the Army take control of the overall case and set up their own investigative team.
Take the attack on the GHQ attack in 2009. Despite a terrorist being caught alive, the military leadership investigation into an attack on its own headquarters was questionable. A report was submitted to General Kayani based on the evidence provided by Dr. Usman (the surviving terrorist) but still no criminal action was taken against him or any of the individuals or organizations identified in the report. This evident lack of support has led to a struggle between the different law-enforcement agencies within the country.
The ISI usually takes days before complying with the requests made by the police and when the action is taken, it is deemed futile as the period of achieving any sort of success has actually passed away. The other side is that small technicalities lead to the acquittal of the accused. The intelligence agencies are not ‘legally’ allowed to arrest suspects. This can be done only through the police. These agencies hence go on to nab the suspect and then involve the police to provide backdated First Information Reports (FIRs). The defense lawyer latches on the anomaly and that leads to acquittal. Hence even if the agencies are sincere in their efforts to prosecute the terror suspects, their way of functioning hinders the trial. 
There have been several instances when judges or lawyers concerned are intimidated by terrorist groups. Before and during the Army operations in the tribal regions, there were regular reports which said that judges were being threatened by the Taliban.
One such victim was the judge presiding over a case involving Sufi Mohammad in the ATC in Malakand. He was threatened and the Taliban visited his house and threatened his family as well as the relatives who were living in Peshawar. The Daniel Pearl killing saw bomb threats issued to the city jail in Karachi, as a result of which the trial was moved to a jail in Hyderabad, Sindh.
Death threats have been regularly issued to members of the security forces too, an example being that of the IG of Islamabad who was asked to vacate his post by terror elements because of his role in the prosecution of terror suspects. This sort of intimidation works because of the absence of Witness Protection Cell and proper security for judges, lawyers and security personnel.
Flaws in the trial process and the role of the prosecution are reasons behind the high rate of acquittals. The prosecutorial services in Punjab were introduced through the Punjab Criminal Prosecution Service Act 2006. After this act came into operation, the total prosecution services in Punjab, from the registration of the FIR up to the conclusion of the case by the Supreme Court of Pakistan, came under the Punjab Criminal Public Prosecution Service Department. 
This Act basically handed an immense amount of power to the prosecutor. Once the prosecutor receives a case file from the police, which the police have already decided to pursue, the prosecutor reviews it and has the option to continue with the prosecution, take no further action or divert it away from the criminal proceedings. This ‘power’ in the hands of the hands of the prosecutor is normally controlled by instating other bodies. This has been implemented in various countries which have such a system. In Pakistan, there is no such body which regulates the power of the prosecutor. Any prosecutor authorized by the prosecutor general, as also the prosecutor general can inform the court at any stage of a trial that he/she wishes to withdraw the case and the case is then withdrawn. This has led to the withdrawal of many terror cases. The primary reason for such withdrawals is threats issued to the prosecutor and his family.
It is up to the government of Pakistan to pave way for proper changes in the working of the anti-terrorism courts as well as the implementation of anti-terrorism law. A weak and seriously flawed system is allowing many suspects to escape punishment and this has set a very bad precedent. The respect gained by the judiciary in its fight for independence and against issues like price hikes may be lost because of its inadequate actions with regards to terrorism.
The ineffective working of the judiciary is directly increasing the morale of the Taliban and other terror groups. The ease with which the terror suspects are acquitted may also encourage the terror outfits to indulge in worse actions with no fear of effective crackdowns.
The nexus between the terrorist groups and the intelligence agencies is growing stronger due to these actions and another nexus of that between religious leaders, terror groups and the police force, is coming into the picture. Religious groups normally exert pressure on the police to free certain terror suspects as these religious groups have an influence over them. These affiliations will hamper the functioning of the judiciary overall as almost all the bases via which the judiciary can work effectively are being tampered with.
These acquittals will also hamper the relations Pakistan may try to forge with India as it has expressed displeasure with the acquittal of the likes of Hafiz Saeed. Relations with other countries too will be affected too.
If the Pakistan government and its law-enforcement agencies don’t ensure that all the rules and regulations concerning the Anti-Terrorism laws are effectively implemented, a public backlash is possible. It could be sectarian in scope and complexion as there is deep consternation with regards to the acquittal of suspects and leaders of organizations accused of indulging in sectarian attacks.Internal chaos and violence will not be to the liking of the Zardari government which is grappling with a host of problems that are making Pakistan a failed state.
 ‘Four accused in Marriot Bombing Case acquitted. Dawn.com. May 5, 2010.
 ‘Two Including Pearl Murder Suspect Arrested’. Daily Times. April 17, 2004
‘French Nationals killed in Karachi over Kickbacks.’ Dawn.com. June 19, 2009
 ‘Benazir attack suspect freed.’ Daily Times. June 17, 2008
‘LHC orders quashing of FIRS against Hafiz Saeed’. The News. October 13, 2009.
 ‘Sri Lankan Team Attack suspect held’. Dawn.com. June 17, 2009
 ‘Aqeel alias Dr. Usman, the GHQ attack mastermind, previously arrested and released.’ Let us build Pakistan. October 12, 2009
 ‘Swat Taliban Mouthpiece, Top Commander arrested’. Dawn.com. September 12, 2009
 ‘No stopping of terrorists on psychological front’, Daily Times. May 30, 2010
 ‘Acquittal of Marriot Attack accused challenged.’ Dawn.com. July 6, 2010.
 ‘Suspects in 471 cases acquitted in Punjab.’ Daily Times. April 23, 2010
 Shakoor Rabia and Alavi Eqbal. ‘Why Pakistan cannot convict any terrorists?’ Let Us Build Pakistan. May 31, 2010
 Gull Erum Sajjad. ‘Prosecuting Terrorists’. The News. June 26, 2010
‘Where Terrorists walk free’. Daily Times. April 23, 2010