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Pakistan can’t defeat terrorism with a Dysfunctional Criminal Justice system

Following the lethal terrorist attack on defenseless school children, Prime Minister Nawaz Sharif ended the six-year moratorium on the death penalty, restoring it for terrorism-related cases.The decision brought a respite to the Nation which mourned the death of 141 victims of the Taliban school attack.

As confirmed by the Government officials, Ministry of Interior has finalized the implementation of death penalty for 500 offenders who have already been convicted by the courts. They have also lapsed all the appeals and their mercy petitions were also rejected by the President of Pakistan. The executions of these convicts were originally planned for upcoming weeks. Due to the rising public anger against terrorism,six terrorists have already been hanged since last Friday.  Amongst the six swung so far, five were involved in a failed attempt to assassinate the then President Pervez Musharraf in 2003, while one was involved in a 2009 attack on the General Head Quarter of Pakistan army.

However to the utter dismay of many, Rawalpindi bench of Lahore High court (LHC) and Sindh High court(SHC) suspended the execution of seven convicted terrorists mentioning various grounds. Justice Arshad Mahmood Tabassum of LHC Rawalpindi bench deferred the convictions of five terrorists who were handed the death penalty for their immersion in an attack on an army Training camp in Gujrat in 2012. Convicted namely Kamran, Umar Nadeem, Azim, Amir Yousuf and Asif Idrees were handed down death sentences by a military court for their involvement in an attack on Gujrat Army training Center in 2012  which claimed the lives of at least seven security personnel. Meanwhile, SHC also suspended the black warrants of two convicts observing that proper legal procedures were not followed.

Soon after the order by the LHC’s Rawalpindi bench, Prime Minister Sharif directed the attorney general of Pakistan to take appropriate legal measures to get rescinded the suspension order on death penalties of these terrorists.This whole situation clearly exhibits that there are legislative loopholes in Pakistani criminal justice system which helps terrorists groups to be fled from the punishments. The courts obviously have to satisfy all the legal procedures.The judiciary cannot convict the accused, if there is no evidence against them.

Many extremists wedged by the police after terrorist acts in Punjab, KPK and Sindh were able to go to the courts and get released. Infact, there have been so few convictions of the extremist accused of terrorism. Some observers have opined that this low rate of conviction is due to the lack of convicting evidence; for which the executive departments should be blamed. However, writers like Dean Nelson opines that the low conviction rate of terrorists is due to the populist and religious bent of the Pakistan’s judiciary.It appears that terrorists are at ease to conduct their disruptive activities due to ineffectiveness of Pakistani criminal justice system.

The witness protection system in Pakistan is almost nonexistent. Consequently, those who give evidence against powerful criminals and terrorists in courts receive no security. In various cases, police officers investigating terrorists have been murdered. The best-known case is of Malik Ishaq, whom police charged with at-least seventy murders but he was never convicted.

Judges also face similar security threats, and in many cases lower court decisions in terrorism cases are apparently pending due to such fears.  One of the prime example of the failed criminal justice system is that alleged terrorists arrested for involvement in the Islamabad Marriott bombing and some major attacks in Punjab Province were released by the courts for lack of evidence. The police had to put the alleged persons under “house arrest” subsequently to buy more time before challenging the decisions in higher courts.

For the last 15 years, the major law governing the arrest, detention, prosecution, and sentencing of terrorism has been the Anti-Terrorism Act 1997 (‘ATA’). Section 6(1) of the ATA, has most recently amended in March 2013. ATA was passed by the second Nawaz Sharif government,in response to intensifying sectarian terrorist violence. To expedite justice, the ATA requires that anti-terrorism courts(ATCs) conduct trials on a daily basis, to be completed within seven days.

The value of the ATCs is questionable given that they largely rely on the same judiciary, prosecution service and investigation agencies as regular courts. Usually the district or sessions judges who are posted to ex-cadre posts, including as ATC judges, for which they have no additional training. Anti-terrorism prosecutors, too, are drawn from the provincial prosecution services, with no special training or protection, and dependent on the same standard of evidence as in all criminal investigations. Ironically, military is the only prime counter-terrorism actor in Pakistan but it cannot win the war on terror with a dysfunctional criminal justice system.

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