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Burden of proof



By Imtiaz Gul

The News, January 17, 2014


Pakistan’s counterterrorism policy will fail without drastic improvement in prosecution

Two days after the assassination of Chaudhry Aslam, Karachi police registered a case against Tehrik-e-Taliban Pakistan (TTP) chief Mullah Fazlullah and spokesman Shahidullah Shahid. The latter’s claim of responsibility, it seems, became the basis for the first information report (FIR). This reminds us of the FIR against TTP founder Baitullah Mehsud for the December 27, 2007 assassination of Benazir Bhutto, and similar reports after the September 2008 car bomb attack on Islamabad’s Marriot Hotel, the attack on former premier Shaukat Aziz, the attack on the General Headquarters of the army, and the December 2009 attack on the Parade Lane Mosque in Rawalpindi.

Most of these cases have either been shelved, or lingering because of poor investigation and ill-prepared, unimaginative prosecution. Even those who publicly claimed responsibility for acts of terror and aggression against the state (often before cameras and microphones) either got off the hook or are still awaiting convictions.

“You cannot convict even a single person based on these FIRs,” a Miami attorney told me in early 2011, about reports registered against “perpetrators and masterminds” of Taliban terrorist attacks in Swat in 2009. He was pursuing Swat-related cases of terrorist financing. Later that year, a key prosecutor told me the chance of conviction in all 73 terrorism-related cases was practically zero.

There are serious legal bottlenecks in Pakistan’s counterterrorism strategy – a non-committed and often compromised prosecution that rests its case on poor police investigation and flawed documentation. Good prosecution, comprehensive legislation, and ruthless enforcement of laws through a professional, non-political police force are the fundamental pre-requisites in a fight against terrorism and extremism. It essentially means a combination of software and hardware – organizational reforms, training and comprehensive multi-tiered capacity-building programs, backed by the provision of modern equipment to combat terrorists and criminals.

The first major step of a new counterterrorism strategy should be an independent, well-prepared and matter-of-fact prosecution. Several foreign donors have ventured into improving policing and prosecution service. In Punjab, for instance, the GIZ (German Agency for International Technical Cooperation) has been supporting prosecution services since 2011, carrying out professional trainings and exposure trips based on the primary assumption that only effective, informed and independent prosecution can take a breach of law to its logical conclusion. The federal government can expand the scope of this project to all the provinces.

The roughly 12,000 arrests in Karachi in the last few months represent a monumental challenge for the prosecution. There are neither enough investigators nor prosecutors to pursue these cases in courts, where conviction rates have already been dismally low. The unusually high pendency even in the 110 or more anti-terrorist courts across the country underscores the need for a) raising the standards of investigation (because on that rests the prosecution case), b) Buttressing prosecution services, and c) capacity building of prosecutors.

Secondly, the police stands out as the most important plank in the counterterrorism strategy because it provides the first line of defense – the primary source of prevention, protection, pursuit and prosecution.

But unfortunately, it continues to suffer from an extremely poor reputation, seen more as a politicized and corrupt organization complicit in crime and militancy. The deadly mix of organized crime, such as politically patronized gangs, and its nexus with militancy and bureaucracy in areas such as Karachi and Khyber Pakhtunkhwa represent a huge challenge to law enforcement.

Thirdly, the government must review existing standard operating procedures (SOPs) for the police and for the society. For instance, there should be a ban on the telecasting of CCTV footage of any criminal and terrorist act on television, so that police and intelligence can follow the leads. Also, law enforcement officials should not be allowed to give away names of survivors, or arrested suspects. The best way to get to the perpetrators is by maintaining a deliberate ambiguity. The police must also be instructed not to waive or relax any laws in the name of religion. That amounts to subversion of the law by the state itself.

Fourthly, the police needs a modern means of protection and communication. Electroshock weapons such as rubber-coated projectiles, stun guns and night-sticks are an essential element of fighting criminals and terrorists, and for catching them alive.

Penultimately, the new counterterrorism policy must envisage legal administrative control and monitoring of sectarian hate content that emanates from mosques and madrassas. Since there is no policy on what private schools and madrassas teach, clerics and religious groups are practically free to teach and train their students as they please. We should follow the Turkish, Malaysian, and Indonesian examples.

Lastly, the government should also enforce a strict ban on mobile phones inside jails, or at least install cellphone jammers in prisons. The recovery of hundreds of phones from the Dera Ismail Khan jail and revelations about how they were used for the attack on the facility in June last year indicate the importance of this measure.

The prime minister and the interior minister will have to realize that raising walls and fences only provides transitory physical barriers. They hardly deter terrorists and criminals from subversion and crime. The new policy must rest on the basic premise that the counter-insurgent – or the state – does not shed bled or take life. Its primary responsibility is to prevent the insurgents and criminals from bloodshed, and even to guard against shedding the blood of terrorists as much as possible.

Without drastic structural reforms, de-politicization, freedom from government influence, and improving its intellectual capacity, the police cannot really function as the society’s first line of defense. And the prosecution will not be able to defend law in any court unless we can rely on the assumption that all cases can only stand litigious scrutiny if the arguments are founded on a monolithic legal system.

Imtiaz Gul is the executive director of the independent Centre for Research and Security Studies, and the author of the recently released book Pakistan: Before and After, published by Roli Books, India

Email: imtiaz@crss.pk