Fair trial and its essentials in the age of terrorism

By Barrister Amjad Malik

This paper was read at the SCBA conference recently.

Two thousand years ago, Marcus Tullius Cicero, Roman philosopher, orator, lawyer, and politician, once stated that

"The soul, mind, and meaning of a State lie in its Laws".

That is, laws are a reflection of the state's mindset and commitment to fight issues like terrorism and target killings.

9/11 changed the world and internal security and anti-terrorism 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. Law Enforcement Agencies (LEA’s) all around the globe got special powers to cope with the emerging internal security challenges.

USA was the first country who introduced new anti-terrorism laws and measures after 9/11 and it began with the creation of the Department of Homeland Security (DHS). To achieve the desired results, the department was provided full legal support from the US congress. 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. It enabled the American LEA’s to have appropriate tools like searching telephone, e-mail communications, medical, financial, and other records.

Just like the US, some of the toughest anti-terrorism laws were introduced in the UK after 9/11. The Changes made in anti-terrorism laws gave special powers 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 LEA’s 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. Under the Anti Terrorism Act 2000, the British police was allowed to detain any suspect (without charging him) for 28 days. During this, efforts were also made to increase the detention limit to 90 days but failed because of the opposition and resentment from the human rights groups. The purpose of these laws is to enable the British LEA’s 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. Other countries of the world also adopted same kind of measures.

Unfortunately, unlike the global 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 personnel networks inside Pakistan particularly in FATA and Baluchistan. Now both these areas have been turned into battle zones where the LEA’s and intelligence agencies had 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 foreign intelligence agencies established a 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. Cases of acquittal of Hijrat Ullah and Rymond Davis are the prime examples of poor legal infrastructure in respect of terrorist activities, adjudication and intelligence interception.

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. But the government and authorities are trying to overcome this daunting challenge via various administrative measures relying on common practices of peace time law and order situation for any permanent solution. Consequently, the national internal security profile continues to get bleaker with every passing day. 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?

Untimely acquittal of the terror suspect ‘Hijrat Ullah’ ignited a debate in the country i.e. whether existing criminal justice system of Pakistan is able to investigate, prosecute, convict and sentence those involved in heinous crimes such as terrorism, suicidal missions and target killings. Acquittals of those from courts accused and/or involved in either Marriott hotel bombings in the capital or Manawa Police Academy attack for lack of evidence begs the very question whether our existing system has the inbuilt capacity to deal with the 21st century issues like radicalization & terrorism and bringing those culprits to account.

Pakistan’s criminal justice system and anti-terrorism laws are outdated. 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. They were made before 9/11 and the initiation of the fourth generation war against Pakistan hence they do not provide any assistance to the armed forces in their fight against the enemy 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. Enemy Irregular Combatants rejoin their cadres after seeking acquittals from courts.

The low conviction rate, between 5 and 10 per cent at best, is unsurprising in a system where investigators are poorly trained and lack of access to basic data and modern investigation tools. Prosecutors, also poorly trained, are not closely involved in investigations. Corruption, intimidation, in the wake of Rymond Davis case involvement of foreign intelligence agencies and other external interference in trials compromise cases before they even come to court. Given the absence of scientific evidence collection methods and credible witness protection programs, police and prosecutors rely mostly on confessions by the accused, which are inadmissible in courts or courts declare those confessions as unacceptable evidence if the accused retract his statement or evidence of torture claimed and found. Militants and other major criminals are regularly released on bail, or their trials persist for years even as they plan operations from prison. Terrorism cases, too, produce few convictions.

The Anti-Terrorism Act of 1997 is vague and cannot guarantee the adequate legal support to the armed forces. Not only has this Act been unable to provide enough authority to the LEA’s in the current chaotic security situation, it also has no effective protection for the witnesses and judges in terror related cases. The prime example of this fact is trial of Omer Saeed Sheikh (Daniel Pearl murder case) when the prosecution moved successfully to request a new judge, arguing to the Sindh High Court that the judge had allowed the creation of an intimidating courtroom atmosphere by failing to restrain defendants from making threatening gestures toward witnesses and court officers. Out of further concern for courtroom safety, the prosecution also won a change of venue from Karachi to Hyderabad. The Anti-Terrorism Act of 1997 also has no provision or penalty for the political entities having armed wings, links with terrorists and foreign funded mercenaries.

The politicians did not address the primary legal weakness in conviction of terrorists which is the law of evidence. It is still based on accounts of eyewitnesses instead of investigating the cases on scientific basis. Due to the prevailing sense of insecurity, the eyewitnesses often do not come forth to identify the terrorists which make their acquittals easy from the courts. More than 1000 trained irregular war combatants, captured by the security forces during the daring operations in Swat and Bajur, were released by the courts due to inherent legal flaws in the law of evidence. Not a single terrorist has been convicted and/or sentenced to death since 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.

RECOMMENDATIONS

· The role of anti terrorism courts needs to be changed. State must consider transferring all pending cases to regular courts of session with legal method and legislative cover. These courts must be provided with necessary equipment and facilities according to modern technology so that accused can get an opportunity of fair trial and due process of law. Special anti terrorism courts only entertain the matters of national security i.e. spying etc and foreigners and for that secretary of defense or interior issue a certificate confirming that the matter falls outside the jurisdiction of ordinary courts. There should be a right of appeal in Supreme Court against the decisions of these courts. A fine example of such court is National Security Tribunal of United Kingdom.

· Amend the Criminal Procedure Code to establish a robust witness protection program, and make the protection of witnesses, investigators, prosecutors and judges in major criminal cases, particularly terrorism cases, a priority. Witnesses who risk their lives by testifying against terrorists should get complete support i.e. new identity documents, proper protection and relocation etc. There should also be awards and cash rewards for such witnesses to acknowledge their national services.

· Improve the conditions of police stations and prisons in order to stop them from becoming the breeding grounds for criminals.

· Carry out a comprehensive assessment of the gaps in investigation and prosecution, based on analyses of crime patterns, with the goal of identifying personnel, training and resource needs at the national, provincial and district levels; invest in producing cadres of specialists within investigation branches and agencies, in such fields as target killing, suicide bombing, kidnapping, homicide, counter-terrorism and cyber-crimes.

· Strengthen the police’s investigative capacity by:

a) Computerising and maintaining centralised, serviceable records of all FIRs.

b) Amending the Telegraph Act to establish clear protocols for investigators’ access to mobile phone data, and ensuring that this access is not undermined by the unlawful interference of military’s intelligence agencies.

c) Amending the Evidence Act to require investigators to incorporate scientific methods and data in investigations.

d) Modernising the police force by enhancing scientific evidence collection, including DNA analysis, automated fingerprinting identification systems, and forensics, with particular emphasis on the establishment of modern forensic science laboratories. Help and assistance from NADRA can be sought to combat crime.

· Prevent external interference in investigations by:

a) Requiring the approval of the relevant public safety commission before an investigating officer in an ongoing investigation can be replaced.

b) Publicising instances of military interference in investigations, including pressure on the police to surrender prisoners to the military institutions, and raise such cases with the higher judiciary.

· Like western countries, refrain from replacing the trial judges during the proceedings.

· During the terrorism and murder trials discourage the applications for adjournments to avoid the unnecessary delay. Superior courts should not interfere in the cases unless inevitable to ensure the due process.

· Shift the focus of Policy from short-term solutions for speedier delivery towards establishing a fair and balanced justice system that tackles the primary threats to internal stability and instils public confidence in the state. The conclusion of the Mehram Ali Case (PLD 1998 SC 1445) marked the importance of the independence of a judiciary, particularly in reference to the Article 175 of the Constitution. Then Chief Justice of the Supreme Court of Pakistan observed: 

I would add a note of caution that sacrifice of justice to obtain speed disposition of cases could hardly be termed as "justice". A balance ought to be maintained between the two commonly known maxims, "justice delayed is justice denied" and "justice rushed is justice crushed". I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice.

· The ratio of conviction of those tried for terrorism is very low and alarming. Mechanism of Prosecution needs immediate attention and improvements. First of all Pakistan needs a prosecution set up independent of police which should have its own provincial and national directorate, independent recruitment process and mentoring and monitoring procedure. Currently it’s too muddled and party divisions affect its performance which must not compromise the overriding objective to protect national security and public from criminals of international rankings. We need to have a ‘State Prosecution Service’ which ensures independent prosecution, keeps a check on criminal investigation and separate that of genuine crime fighting to that of abuse of process and faulty unsafe investigation(s) and takes forward cases if they have greater chances of securing convictions.

· I think there is a dire need of setting up a specialist court which adjudicate cases of citizens and or foreign nationals arrested which involves allegations of international terrorism, national security threat(s) and or espionage where those cases may not be tried in ordinary courts of session because of a risk of compromising intelligence gathering mechanism, intercepted material and risks to joint co-operation with countries, groups, individuals and tribes. Pakistan is facing multifarious threats due to its strategic location and depth, and threats emanates from different directions. It may be from rival India in counter intelligence measures or Afghanistan due to ongoing war on terror or even Baluchistan factor where heavy foreign money is involved to achieve greater goal of curtailing China where foreign interference floats on the surface. Where a lot of foreigners come to the attention of security community with a view to harm the national security, and may not be tried due to lack of a specialist mechanism under which intercepted material and intelligence prejudicial to national security is protected, preserved and secured. Suggested court will alleviate the concerns of civil society if a person remains in custody for longer, legalize the detention, and empower the executive to detain people who pose a threat to the public, country’s security and the very existence and may not be identified and or brought to public for legal and security reasons. A court or a tribunal is set up under a vetted existing high court judge and or a newly appointed where two set of hearings take place one in open, second a closed where lawyer, accused is not present and only vetted prosecutor general present a case. Accused are given a code name (a,b,c) and they are referred at all times with their code names and their nationality at no point is revealed so that intelligence is not compromised. Judge heading the court can authorize a statement to press and on most of the open hearings the session is conducted in a camera session where only accused and his attorney is present. In UK (SIAC) a Special Immigration Appeals Commission was set up through legislation in 1997, a specialist tribunal adjudicating appeals where a person is considered to be a threat to national security, where most of the proceedings are conducted in camera where all the secret evidence is presented and analysed. In those hearings no lawyer and or accused is present. That model is successfully working in UK for the last decade and is considered Human Rights compliance in a mother of democracy and a land of human rights, then why can’t Pakistan have a similar system to avoid unnecessary criticism. As I have been appearing before that commission for over 10 years, I think Parliament and those stake holders must come up with a joint resolution to understand the problem we face, and find a solution to defeat it with a solution which is compliant of the constitutional guarantees, upholds law and is need of the hour in order to protect the public and national security of Pakistan from increasing violence and terrorism.

Solutions of all challenges to criminal justice system during internal armed conflict, making criminal investigation effective and compatible with modern technology, managing trials, respecting due process and rights of accused and victims has been provided in constitution of Pakistan. The real problem is political will and mindset. If parliament, by using its collective wisdom, introduces a powerful strategy and ensures a fair and balanced criminal justice system compatible with Article 6 of European Convention of Human Rights and Chapter 1 of the Constitution of Pakistan 1973 then I am sure that these problems can be countered successfully.

Concluding this paper, the burning question is whether the courts of today can ensure a fair trial to yesterday’s Zulfiqar Ali Bhutto or not ? If it can, then in the wake of release and departure of US Citizen Rymond Davis without a trial, we beg to question whether the system is robust enough to try and sentence tomorrow’s perpetrators and masterminds of heinous terrorist activities. Where state offer a trail in which all the departments perform their collective responsibility and take part in the process of turning the accused into convicted criminal by ensuring compliance with the international norms of justice and where justice is seen to be done. It is possible but when will it happen? We leave that question to the political masters of Pakistan.