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Counter-Terror Policy and Prosecution: Time to plug loopholes



By Imtiaz Gul

Weekly Pulse, January 20, 2014


Two days after the assassination (January 9) of Chaudhry Aslam, the Karachi police registered a First Information Report (FIR) against Tehreek-i-Taliban Pakistan (TTP) Chief Mullah Fazlullah and Spokesperson Shahidullah Shahid. The latter’s claim of responsibility for the murder, it seems, became the basis for the FIR. This also reminds us of the FIR against TTP founder Baitullah Mehsud for the Dec 27, 2007 assassination of Benazir Bhutto, or FIRs of bloody incidents such as the September 2008 attack on the Marriott Hotel, Islamabad, or those against the perpetrators of attacks on former premier Shaukat Aziz, General Headquarters or Parade Lane Mosque (Dec 2009). Most of these cases have either been shelved or are lingering for poor investigation and ill-prepared and unimaginative prosecution. If the performance of the police and prosecution in the past decade were an indicator, the latest cases registered against TTP leaders are also likely to fall flat on their faces or lead to no where. Even those who publicly vowed responsibility for acts of terror and aggression against the state (often before the cameras and microphones) either got off the hook or are still awaiting convictions. Let us see why? 

Here, it wont be out of place to recall what a Miami attorney told me in early 2011 about several FIRs registered against “perpetrators and masterminds” of Taliban terrorist acts in Swat in 2009 and 2009. The attorney was pursuing some Swat-related cases of terrorist financing. 

“You cannot convict a single person based on these FIRs,” he had said. And one of the lead prosecutors in Malakand corroborated the same later that year when he told me: The chance of conviction in all 73 terrorism-related cases is practically zero. 

What both prosecutors told me in Miami and Swat, respectively, underlines grave legal bottlenecks in Pakistan’s counter-terror strategy; a non-committed and often compromised prosecution that rests its case on poor police investigation and flawed documentation. Both eventually allow most accused to go scot free. 

Viewed against this backdrop, prosecution, comprehensive legislation, and ruthless enforcement of laws through a professional, non-political police force emerge as some of the fundamental pre-requisites that can help in effectively fighting both terrorism and extremism. It essentially means a combination of software and hardware i.e. organizational reforms, trainings and comprehensive , multi-tier capacity-building programmes followed by modern tools needed to combat terrorists and criminals.

The first major step of the CT strategy, for instance, can be independent, well-prepared and matter-of-fact prosecution which is always the key in the state’s endeavour to maintain and uphold rule of law i.e. provide justice, protect rights and punish the violations.

Several foreign donors have ventured into improving policing and prosecution services as part of their efforts to flag “rule of law” as the ultimate panacea for an equitable, just society. The UNDP, European Union, British DFID, and GIZ - the German Agency for International Technical Cooperation- have tried contributing their bit to the issue. In Punjab, for instance, the GIZ has been supporting the Prosecution Services since 2011. This project aims at supporting the capacity and organisational development of the Punjab Criminal Prosecution Service (PCPS) and turn it into an independent, efficient and effective prosecution service for Punjab.

Since its commencement in 2011, the project has successfully implemented and carried out various project activities through professional trainings, exposure trips, based on the primary assumption that only effective, informed and independent prosecution can take breach of law to its logical conclusion.

The federal government can draw on this German-funded initiative to expand the scope of this project to all provinces as a whole-of-government approach, whereby it can highlight the advantages and importance of an independently working prosecution service for the entire country and thus raise awareness on the criticality of such an independent service and the public’s cooperation for it.

The roughly 12,000 arrests in Karachi in the last few months, for instance, represent a monumental challenge for the prosecution; neither are there enough investigators nor prosecutors to complete documentation and place it before the specified courts – where conviction rates have been dismally low.

An unusually high pendency even in over 110 anti-terrorist courts across the country underscores the dire need for: a) raising the standards of investigation (because on that rests the prosecution case; b) beefing up prosecution services; and c) capacity building of prosecutors.

Secondly, police stand out as the most important plank in the counter-terror strategy because they provide the first line of defense in the society. But unfortunately, police continue to suffer from an extremely bad image and are seen more as a politicized and corrupt complicit in crime and militancy rather than as a protector. The deadly mix of organized crime, politically patronized gangs, their nexus with militancy and bureaucracy in areas such as Karachi, or Khyber Pakhtunkhwa represent a huge challenge to law enforcement. This exposes police to daunting challenges because they remain the primary source of prevention, protection, pursuit and prosecution.

Thirdly, review existing standard operating procedures (SOPs) for police and the rest of the society which will eventually help prosecution. For instance, ban the telecasting of CCTV footage of any criminal and terrorist act so police and intelligence can follow the culprits to their dens as soon as possible. Also, bar police and law-enforcement officials from giving away names of surviving injured or terrorists and criminals captured during or after a certain operation. The best way to reach out to the masterminds is in maintaining deliberate ambiguity about people involved in attacks. The police must also be instructed not to waive or relax law in the name of religion. Setting aside rules in the name of a religious occasion amounts to subversion of the law by the state itself.

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

Fifth, the new CT 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.

Place and enforce strict ban on mobile phones inside jails, or at least install cellphone jammers there to rule out communication. Recovery of hundreds of phones from Dera Ismail Khan jail and how they were used for the attack on the facility in June last year should be instructive on the hazards of this technology.

For any CT strategy to be successful, the prime minister and his interior minister shall have to realize that fighting and punishing political terrorists overflowing with ideological vibes or hard-core criminals will not be possible without first reforming the SOPs. For that the software part takes precedence over hardware for the simple reason that raising walls and fences only provides a transitory physical barrier. They hardly deter terrorists and criminals from subversion and crime.

The new policy must rest on the basic premise that the counter-insurgent i.e. the state does not shed blood or take life. Its primary responsibility is to prevent the insurgents and criminals from bloodshed, and even guard against shedding the blood of terrorists as much as possible.

That is why without drastically reforming the existing police structures, depoliticizing the department, freeing it of governmental influences, and without improving its intellectual capacity, the police cannot really function as society’s first line of defense. Neither will the prosecution be able to defend law in any court unless it is raised and trained on the assumption that the case of prosecution can stand the scrutiny of the court only if its software is correct and grounded in law.

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