War on Terror and Collapse of the Justice System

Desperate times call for desperate measures!

By: Shahzad Masood Roomi

The prevailing chaos and crisis the Pakistani society is entangled in is not merely a law and order problem, but the result of a covert war, wherein the irregular enemy war combatants are ruthlessly attacking the Pakistani state and nation. Ironically, the national lawmaking institutions, political leadership, as well as the military establishment, have remained oblivious to this fact for the last decade. All that this government is trying to do is to overcome this daunting challenge via various administrative measures, relying on common practices of peace-time law and order situations like police FIRs and criminal investigations, and looking towards the collapsed judicial system for a permanent solution. Consequently, the national internal security

profile continues to get bleaker with every passing day. Except for military response and efforts, national security has been compromised in one way or the other at diplomatic and political level, as there is no realization of the war which is being waged against Pakistan. Diplomacy had failed a long time ago after a policy level disaster in 2001 when Pakistan joined the WoT without negotiating anything for its own national interests. The national media has been handed over to paid and sold-out analysts and anchors. Political parties shamelessly indulge in mud-slinging and point-scoring, and the economy is in complete chaos.

PNS Mehran Attacked by enemy irregular war combatants

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In this scenario, the judiciary had remained the only hope to keep intact the people's faith, by providing justice and prompt punishment to the culprits. But unfortunately, the judicial collapse that has emerged in Pakistan now is the worst one thus far, and due to it the faith of the masses in the judiciary has been shattered, and the national security is in complete panic on the internal axis. This failure has led the whole nation to the brink of complete social anarchy. A glimpse of this horrendous situation can be seen in many of our urban centers, particularly in Karachi. Subsequently, this leaves the military as the only institution to bear the entire burden of fighting a covert irregular urban war in Pakistani cities where the NonState Violent Actors (NSVAs) have been used by hostile forces like the CIA and RAW. The Law Enforcement Agencies and the military are fighting an extremely complex, nerve-wracking and endless war against the foreign-funded NSVAs within the Pakistani borders. The judicial crisis is so severe that the military top brass has openly expressed their unease with the current state of judiciary vis--vis convicting the terrorists. In this way the military top brass has marked the Achilles' heel in the entire chain of administrative and governance measures to combat this menace.

emerging challenge of the foreign terrorists trying to invade the US soil. Border security and health insurance services were the next in the list of services put under DHS. These provisions played a major role in the prevention of any high-scale terrorist attack in the US after 9/11. The establishment of the DHS was followed by the comprehensive legislation of anti-terrorism laws to further enhance the efficacy of the DHS. USA Patriot Act was passed after 9/11. This law, on its inception in 2001, faced a lot of criticism by the HR organizations and the critics, as it put every American citizen under observation by the various US authorities and departments. The title of the Act is constituted by a three-letter acronym (USA) preceding a seven-letter acronym (PATRIOT), which in combination stand for 'Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism'-Act of 2001. As its name suggests, it enabled the American LEAs to have appropriate tools like searching telephone, e-mail communications, medical, financial, and other records along with the provision of broader detention and deportation authority to the US immigration department working under the DHS. Apart from that, this act labels the American Citizens as 'Enemy Combatants' only on suspicions of being involved in terrorism. Despite all the political antagonism over every other issue, the US politicians showed complete unanimity over this critical one. While drafting this act, legislation in the following areas was done by the US congress and was supported by both the Republicans and the Democrats in the US congress and the senate.
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Post 9/11 Changes in Anti-Terrorism Legislation:

9/11 changed the world, and internal security and antiterrorism laws all over the world were no exception to this change. The most visible change was observed at the global lawmakers' reaction against the emerging threats of terrorism and how they devised new ways and mechanisms to deter these threats. LEAs all around the globe got special permission to cope with the emerging internal security challenges. USA: The introduction of new anti-terrorism laws and measures began in the US after 9/11 with the creation of the Department of Homeland Security (DHS). This new department was established by the Bush administration right after 9/11 to prevent any emergence of local and foreign terrorism within the US. To achieve this, the department was provided full legal support from the US congress. Many services and departments were consolidated in the form of newly-formed agencies under the DHS. Immigration and custom services were put under DHS, and their functions and services were restructured as per the

Enhancing domestic security against terrorism Surveillance procedures Anti-money-laundering to prevent terrorism Border security Terrorism criminal law Victims of terrorism and their families Improved intelligence

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Apart from the USA PATRIOT Act, there were other laws passed as well which shows the level of concern
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among the US legislative bodies to strengthen the legal side of their efforts against terrorism. All the criticism and cynicism was ignored while devising this policy. The John Warner Defense Authorization Act officially allows the US President to implement martial law. This is perhaps the only law in the democratic world allowing the elected president to override all the state and local authorities and station troops anywhere in America to "suppress public disorder". UK: Just like the US, some of the toughest antiterrorism laws were introduced in the UK after 9/11. The changes made in the anti-terrorism laws gave special permission to the UK authorities to conduct their operations aggressively. New Control Orders regime was introduced, assigning unprecedented legal powers to the British police and other LEAs including a provision to impose curfew for 16 hours at any place on need basis, without wasting time in seeking approval from the British government. The purpose of these laws is to enable the British LEAs to monitor and investigate the suspects with a more comprehensive legal cover provided by the British government. Hence the UK authorities were able to detain 1471 suspects from 9/11 to 31/12/2008. Though only 196 were finally convicted by the courts, but even that became possible only due to the new anti-terrorism legislation by the Labour Party. The British police was allowed to detain any suspect (without charging him) for 28 days. Furthermore, in 2007, the Academic Technology Approval Scheme (ATAS) directive was introduced as well to set strict criteria for foreign students who wanted to study in the UK. Along with obtaining the specific clearance before the visa application, the British government labeled some areas of sciences as sensitive subjects for the students hailing from countries not included in the European Union (EU). The British government had to face severe criticism from various corners including the HR circles from within the UK. The London based Guardian Newspaper published the following in 2009 in this regard: Labour has passed an unprecedented amount of legislation since coming into power, roughly estimated as creating one new criminal offence for every day in office, with numerous pieces of antiterrorism legislation.

British Police got empowered through new anti-terrorism laws

Lord MacDonald who oversaw the government's review of counter-terrorism powers commented, ' UK over-reacted after 9/11 attacks'. Lord MacDonald told the BBC: "I think we saw some powers, some laws, enacted which did go too far." But a firm political commitment to provide the effective sheathing on the legal axis helped the UK intelligence and Law Enforcement Agencies to make that country more secure. According to the UK security chief, special powers to LEAs are the essential tool in cases where there is intelligence that someone is involved in extremism but has not yet committed a crime, such as someone associating with the known plotters. Countless terrorism suspects have been released by the Pakistani courts as the Pakistani LEAs have no such power or authority thus enabling the terrorists to seek easy acquittals from the courts. European Union: In the EU, work on anti-terrorism laws was already in progress before the 9/11 attacks, but there existed a considerable amount of criticism over these proposed anti-terrorism laws. Two security packages, built on a considerable amount of legislation, were already under consideration. But the adaptation of these laws was still a concern which changed dramatically after 9/11. This incident certainly sped up the process of adopting the highly debatable laws. This phenomenon was observed in the entire EU region, where the member nations reached a consensus which was not there previously. Had it not

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been for 9/11, it would have taken years of negotiations among the EU member states before implementing these laws. The regulations on asylum and immigration across the EU remained the major focus of the new laws. Evelien Brouwer asserts: 'It appears that the events of 11th September were, in the first months following this date, particularly used as a trigger to consolidate policies, measures or legislation, which had been waiting for a long time for enough support, but found only acceptance in the joint resolution to combat terrorism after 9/11.'

India:
Although the Indian reaction after 9/11 was a biased one, but it was firm and decisive in nature. Prevention of Terrorist Activities (POTA) Act was the official constitutional and legal reaction to the threats like 9/11. It was introduced in March 2002. Irrespective of its draconian nature, this law helped Indian LEAs to expand the legal precincts of their operations due to the provision of more powers and political will of the Indian lawmakers. Former deputy Prime Minister L.K. Advani, in 2002, described it as 'a post-9/11 imperative'. POTA was one of the harshest anti-terrorism laws passed after 9/11 due to its abhorrent provisions like putting the responsibility on the accused to prove their own innocence. The confessions made to the police (often obtained under torture) were to be accepted as credible evidence in order to punish the accused one. Though this law was repealed once the BJP was ousted in the 2004 elections, but still it demonstrated the political will to constitute the required laws in order to deter any perceived threats by providing necessary or required powers to the Indian LEAs and military.

POTA Post 9/11 tool for Indian forces to suppress the Kashmiris

personnel networks inside Pakistan, particularly in FATA and Baluchistan. Now both these areas have been turned into battle zones where the LEAs and intelligence agencies failed to check these terror networks preemptively due to the absence of any clear anti-terrorism policy and adequate legal tools to avert the plans of these terrorist groups. But that was just the beginning! Consequently, when the hostile intelligence agencies (CIA/RAW) established cloak-and-dagger terror networks in Afghanistan and FATA, which were completely asymmetric and irregular in nature and operation, the shortcomings of the Pakistani laws for the purpose of internal security were exposed completely. Pakistan is under attack, but ironically, the Pakistani government, the institutions and the lawmakers are still debating over how to improve the law and order situation! While the country is being attacked by foreign-funded murderers and anarchists, even the realization of the need to discuss these challenges and build responses is not there among the political elite of the country, which is too busy in plundering, looting and power-grabbing games. There is simply no political will or capacity to undertake this challenging task! The brief history of anti-terrorism laws in Pakistan vividly explains the sheer lack of commitment and earnestness by the Pakistani politicians. The last antiterrorism act was promulgated in 1997. Though the term terrorism was defined for the first time in this law, but this definition is certainly not going to help in coping with the threats of the ongoing multifaceted
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State of the Pakistani Anti-Terrorism Legislation:

Unlike the world community, not a single legislation attempt was made after 9/11 to prevent and obstruct terrorist activities on Pakistani soil. This negligence provided opportunities to the global terrorist organizations to establish their financial and

Complete judicial malfunctioning -the Outcome of complete legislative failure!

intended to create unrest or fear, or to create a threat to the security of law and order. But before the military could bring about a positive change to the situation, the Supreme Court once again declared the ordinance as unconstitutional, as the politicians of the opposition (current government) filed cases against the validity of this ordinance. The ordinance was declared as unconstitutional once again as it had no legal authority and effect according to the SC. Later on, the Armed Forces (Acting in Aid of Civil Power) Ordinance was repealed in April 1999. However, "civil commotion" is still included as a crime under the Anti-Terrorism Act of 1997. In August 1999, the original 1997 Act was amended to authorize the establishment of ATCs all over the country. But these decisions failed because of the following factors: 1. The authority of the military to curb the culprits was repealed by the Supreme Court. On the other hand, the politicians did not address the primary legal weakness in the conviction of terrorists, that is the law of evidence. It is still based on accounts of eyewitnesses instead of investigating the cases on a scientific basis. Due to the prevailing sense of insecurity, eyewitnesses often do not come forth to identify the terrorists, which makes their acquittals from the courts easy. LEAs had no authority to preemptively monitor, search and investigate the suspects without obtaining legal warrants. Appeals against the decisions by the ATCs were to be made in the civilian courts, which defeated the entire rationale of establishing ATCs.

covert war. Apart from that, special Anti-Terrorism Courts (ATCs) were established along with the AntiTerrorism Appellate (ATA) tribunal. But it was declared unconstitutional by the Supreme Court of Pakistan right after it was enacted for the first time in 1997. Instead of addressing the SC's objections through amending the conflicting articles, the government of that time issued the Anti-Terrorism (Amendment) Ordinance. Apart from being a subject of reissuance by the President after every four months, this ordinance actually made the original antiterrorism act of 1997 quite ineffective in terms of investigating and convicting the suspects and terrorists, as the special Appellate Tribunals were disbanded and the appeals against the decisions of the ATCs were henceforth to be filed in the respective High Courts. Also, restrictions were placed on the earlier act's provisions regarding the trial in absentia to accord with regular legal procedures. After these changes, the law and order situation worsened once again, particularly in Sindh. The Government introduced Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998, through which broad judicial powers were given to the army units deployed in Karachi.Additionally, a new crime with the name of "civil commotion" was also introduced to punish anyone involved in creating internal disturbances in violation of law or intending to violate the law, commencement or continuation of illegal strikes, goslows, lock-outs, vehicle snatching/lifting, damage to or destruction of State or private property, random firing to create panic, charging extortion, acts of criminal trespass, distributing, publishing or pasting of a handbill or making graffiti or wall-chalking
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After 9/11, the anti-terrorism act of 1997 was sought to be improved through the ordinances, but that provision is no more with the President after the 18th Amendment, passed last year, which disallows the president from rectifying the ordinance again. On the other hand, the country continues to suffer widespread terrorism and invites frequent comments from the western media regarding its failure in ensuring peace and maintaining law and order. The epic judicial and legislative failure has brought about the prevailing situation:

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Anti-terrorism laws are outdated. They were made before 9/11 and the initiation of the 4GW against Pakistan, hence they do not provide any assistance to the armed forces in their fight against the enemys irregular war combatants. These laws are rather counter-productive as a large number of the combatants have been released by the courts due to the presence of loopholes in these laws. The current anti-terrorism law addresses the prevailing security crisis as a law and order situation rather than encompassing the terrorism and insurgencies as acts of war. Civilian courts have been unable to convict and punish terrorists through the legal process. This failure puts the security forces under more pressure in their fight against terrorism and insurgencies. The enemys war combatants, released by the civil courts, rejoin their cadre to launch fresh attacks against the security forces, making their counterinsurgency Ops way more difficult and at times futile. More than 1000 trained irregular war combatants, captured by the security forces during the daring operations in Swat and Bajaur, were released by the civil courts due to inherent legal flaws in the law of evidence. Not a single terrorist has been convicted and sentenced to death for the last decade, and the possibility of doing so would remain next to

none unless the current laws go through a complete overhaul according to the needs of irregular urban warfare. < The Pakistani parliament has failed to come up with a unanimous definition of the term 'terrorism'. There is no political consensus on dealing with this challenge. The subsequent policy failure stems from this inability of the national law making institutions. In the absence of a comprehensive judicial policy to combat terrorism and the foreignfunded war combatants, security forces at times have to take harsh decisions, which later on become an excuse for the hostile forces and the compromised media elements to malign them. Media trial of the security forces after the recent incidents in Quetta and Karachi is the clearest manifestation of this assertion.

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The current government established National Counter-terrorism Authority (NACTA) in 2009, with funding from the EU, to devise a comprehensive antiterrorism plan. At this point in time, the presence of this organization even after two years is nominal. Its role has been defined merely as an advisory body. Any sort of political consensus regarding the realization of this ongoing war has not been achieved yet and there is no consensus in sight, in the near future, over this grave threat to the nation. The mainstream political parties like PML(N), for their own political goals, are hell-bent on blaming the armed forces and the intelligence agencies. When the country is bleeding, and the security forces' personnel are giving the ultimate sacrifices daily, this behavior is completely treacherous! But again, there is no law to put this utter nonsense to an end. More unfortunately, there is no realization, even on the judicial level, about the impact of this mud-slinging on the armed forces. Resultantly, these politicians are playing the role of enemy collaborators in demoralizing the armed forces. This judicial failure has put the security forces and their counterinsurgency ops in a very difficult position on the legal axis. If they eliminate the terrorists and insurgents in these operations then the media, the HR organizations, and even the courts, start raising questions about the legality and authority of such operations and if they
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Enemys Irregular Combatants rejoin their cadres after seeking acquittals from courts

bring the terrorists to the courts, the terrorists get easy acquittals and rejoin their cadres to resume their attacks against the state and the armed forces.

an end now. It must be done NOW. 4. Police and other LEAs in troubled areas (NWFP and restive parts of Baluchistan) must be directly under the military command to enhance the operational efficacy, robustness and cohesion. Pakistani police is not well armed or trained to provide adequate assistance to the security forces against the enemys irregular war combatants in the urban centers. Media laws regarding terrorism and war must be revised as well. A sinister and systematic campaign against the country's armed forces has been launched by some media outlets. Though PEMRA has taken notice of some channels involved in this dirty game, but the damage has been done. New laws must be introduced to avert this Psy-Ops of the enemy. Media must not be allowed to discuss the proceedings and the developments of antiterrorism and counter-insurgency operations, and their related cases, without prior approval.

Recommendations:
The Anti-Terrorism Act of 1997 is vague and cannot guarantee adequate legal support to the armed forces. Not only has this Act been unable to provide enough authority to the LEAs and intelligence agencies in the current chaotic security situation, it also has no effective protection for the witnesses and judges in terror-related cases. Finally, it has no provision or penalty for the political entities having links with terrorists and foreign-funded mercenaries. These are the serious shortcomings and loopholes in the Pakistani anti-terrorist laws, which must be plugged in by formulating strict but consensually constituted laws at the federal level and their implementation must be adequately ensured. A few recommendations are given below: 1. The Government must declare state of war/ emergency in the country. Invoking of wartime laws, and establishment of military courts to convict and punish the enemys war combatants, must be part of this declaration. Civilian courts have failed in coping, even with the everyday law and order criminals, and convicting the war criminals and traitors is out of question given the present state of these courts. Anti-terrorism laws must be revised, and the culprits involved in creating mayhem in the country must be categorized as 'enemys irregular war combatants', regardless of their nationality and adherence. These enemies must be tried in the military courts under the military acts of 1952, 1953 and 1961. This is a must-do task, and is the only short-term solution to the current problematic security scenario. Parliament and legal experts must redefine the term 'terrorism' at the national level. This is a fundamental requirement in the current situation in order to formulate any national security policy. This epic failure of the Pakistani legislative institutions must be put to
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Conclusion:
There is a dire need of radical measures to be adopted both at policy and practice levels on the legal axis of the overall national security policy. Right now, visible lacunas prevail in Pakistan's anti-terrorist laws due to the completely confused and compromised legislative. The nation and the armed forces would continue to suffer and bleed in the presence of the current anti-terrorism laws. Tactical victories against the enemys irregular war combatants would remain futile if these gains are not nurtured at the administrative and political levels and this is exactly where Pakistan needs to act decisively and swiftly. Peace-time laws cannot deliver during wars; the sooner the nation and leadership understand this fact the better it would be. Till the formulation of a comprehensive judicial policy as per the national security requirements, military act must be invoked immediately in order to punish the enemy combatants and put the fear of Allah in their hearts. This task should have been done a long time ago; any further delay would be suicidal for Pakistan. ***********

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