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Judging government on Counter-Terror Front

By Imtiaz Gul

Weekly Pulse ,April 08, 2011

"On September 6 this year the nation is confronted with an existential threat from fanatics, zealots and extremists on the one hand and from the material devastation caused by the history's worst floods on the other. While the former is testing our will to survive and live in accordance with our values and ideology, the latter is testing our ability, resourcefulness and resilience to rise like a phoenix from the ashes of a natural disaster." President Asif Ali Zardari’s statement on the Defence of Pakistan Day, September 6, 2010. 

The leading partner in the ruling coalition i.e. the Pakistan Peoples’ Party primarily owes its existence to the aftermath of the country’s most tragic political assassination i.e. Benazir Bhutto’s murder on December 27th, 2007. It was the worst blow to the PPP since the execution of PPP founding father Zulfikar Ali Bhutto in April 1979. 

While Bhutto fell to a controversial judicial verdict, practically lorded over by a cunning general – Ziaul Haq -, Benazir went down in hitherto mysterious circumstances – surrounded by a deadly wave of violence, mounted by forces that project themselves as the modern-day jihadis against the US-led western imperialism and its allies.

Benazir’s brutal elimination, therefore, was supposed to strengthen the party’s resolve against forces of terror and extremism. She never shunned from publicly denouncing al Qaeda and its auxiliaries. Her successor, spouse Asif Ali Zardari, as well as premier Yousuf Reza Gilani also paid lip service to Benazir’s cause. 

Whether and how much have both Zardari and Gilani gone beyond the lofty rhetoric on the need to countering what both have on occasions characterized as the “existential threat” to Pakistan is a matter of scrutiny.

More specifically, anti-terror legislation and the promise of reforming Federally Administered Tribal Areas (FATA) probably offer the litmus to test the government’s crusade against radical forces, which essentially grew up in the 27,200 sq kms territory of FATA (because of the extremely questionable British-era Frontier Crimes Regulation (FCR) , and have now proliferated all over Pakistan). 

Let us start with anti-terror legislative framework; as of now, the primary legal document that guides the anti-terror cases is the Anti Terror Act 1997, introduced by the then prime minister Nawaz Sharif. 

Crimes that fall within the purview of the ATA of 1997 included murder, malicious insult of the religious beliefs of any class, the use of derogatory remarks in respect of the holy personage, kidnapping, and various statutes relating to robbery and dacoity.” 

This law came under heavy criticism by the opposition as well as lawyers such Aitzaz Ahsan because of the broad definition of terrorist acts. Most interpreted it as seen as blanket cover available to the ruling government to define virtually any kind of violence as terrorism, but has since, according to changing political and security landscape, undergone some changes as well.

The ATA 1997 was, for instance, first amended in October 1998 following objections and reservations by the Supreme Court, followed by the introduction of the Pakistan Armed Forces (Acting in Aid of Civil =ower) Ordinance (PAFO) on November 20, 1998, to deal with the spiral of ethnic violence in Karachi. 

Then, in December 1999, General Pervez Musharraf , through another ordinance, expanded the definition of the act of terrorism and enhanced the ambit of the anti-terrorism courts to include several other provisions of Pakistan’s criminal court. 

Another amendment to this anti-Terrorism (Amendment) Act was decreed on August 15, 2001, expanding the purview of the anti-terrorism courts and instituted clauses to proscribe militant -sectarian outfits and freeze their financial assets. 

But largely, no serious attempt has been made thereafter to provide a comprehensive legal mechanism for coping with the post 9/11 circumstances. 

Neither did it happen under General Musharraf, nor has the present parliament undertaken any effort to back up the military and police action in the conflict-hit areas, particularly in FATA and other ungoverned spaces?

The current PPP-led parliament has failed to perform its primary task i.e. legislation to deal with the radical violence across the country. The Anti-Terror Act 1997, which had been drafted to a certain context, and to deal with sectarian violence as well as acts of subversion, hardly provides adequate protection to the judge, witness and other officials involved. It also doesn’t accept telephone intercepts as evidence, nor does it treat a press statement or claim by members of banned terrorist organizations as evidence for an act of violence.

Frustrated police and other law-enforcement officials say terrorist activities in the Khyber Pakhtunkhwa province, for instance, have increased because courts “honourably” exonerate 98 per cent of the terrorists for “lack of evidence.” 

Mian Iftikhar Hussain, the KPK information minister, claimed on Feb 24 after a cabinet meeting, that courts sentence only two per cent of the terrorists that stand trial. 

Over 3,000 trials, including that of Tehrik-i-Nifaz-i-Shariat-i-Muhammadi (TNSM) Chief Sufi Muhammad, are still pending because the authorities fear that once produced before the normal courts – governed by the anglo-saxon law – most of them would be out. By implication, these alleged terrorists are being held in illegal detention. 

Now coming to FATA, in his inaugural speech late March 2008, the prime minister had announced reforms in FATA. The President then announced some amendments to the FCR on 14th August 2009, but implementation hangs in air to date – despite the fact that FATA remains at the heart of current wave of violence as well as Pakistan’s acrimony with the United States. FATA, for outsiders, remains the most dangerous place of the world, Waziristan in particular. But all Pakistan has done to deal with is to deploy additional troops. 

The entire ruling elite has failed in evolving or helping evolve a consensus over the total abolition of the British era FCR. The parliament failed in even signaling its readiness to incorporate the amendments that the president had promised two years ago. 

The responsibility of legislation on FATA or counter-terrorism rests with the parliament. And the 27-member parliamentary reforms committee, despite amending 105 articles of the constitution through the 18th amendment, failed in at least mentioning its interest in removing the colonial scourge in favour of the law of the land. 

Politicians blamed the army opposition for non-inclusion of the FATA reforms in 18th amendment. Let us assume the army opposed it, but one wonders how will the history determine the army opposed the issue?

Did 42 members of the reforms committee leave something in black and white, is the issue of FATA reforms part of the proceedings? Not one out of 342 MPs opted to resign or speak out to protest the army opposition to the FATA reforms. While the army bears the blame for the current mess resulting from the support for militant approaches and reliance on non-state actors, politicians share the blame equally. And one tends to conclude that the three years of the government have seen little real attempt to address what the political leadership frequently refers to as the “existential threat and its source (FATA).”

The writer heads the Centre for Research and Security Studies, Islamabad

Email: imtiaz@crss.pk