DND Report

The re-emergence of terrorism in Pakistan is now obscuring Pakistan’s potential to become an investment-oriented destination. Today, Pakistan depends upon the ‘War Model’ of counterterrorism due to the absence of an effective ‘Criminal Justice Model’.  

The recently proposed Anti-Terrorism (Amendment) Bill 2024 can serve the emerging demands as the bill empowers the government, armed forces, and other security forces to take immediate and effective action against terrorists and dangerous persons and thus, when there is a threat to national security, security agencies will be able to take timely action, which requires a robust security system.

The War Model

John Braithwaite, a Professor of Criminology at the Australian National University, provides several outlooks for counterterrorism including the Punitive Justice System, Restorative Justice System, and Criminal Justice Model for combating terrorism. He is of the view that terrorism cannot be mitigated only with the War Model which is based on the use of military force in the fight against terrorism. Other theories suggest that the absence or weakness of the ‘Criminal Justice Model’ would also not serve the cause of controlling terrorism rather a mix of the War Model, Criminal Justice Model, Punitive Justice System, and Restorative Justice System would help any country to fight back terrorism. It is pertinent to mention that all theories suggest that crime (terrorism) cannot be controlled in the absence of an effective punishment system and war that is won against terrorists is usually lost in courtrooms (Criminal Justice System).

In the contemporary era, terrorism has become a complex phenomenon and its mitigation also needs a complex operation but it is well argued by researchers that counterterrorism commitment in Pakistan is blurred and response to terrorism from the political elite has been just rhetorical. There is still no consensus among the political elites in Pakistan as to how to deal with the problem of terrorism. Consequently, they have left all the task of formulation and implementation of anti-terrorism policies on the shoulders of the army leadership and this situation is not the only problem; there is a coordination gap between military and civilian law enforcement agencies to combat terrorism in the country. This hampers the success and sustainability of anti-terrorism operations.

A dysfunctional CJS could not serve unusual law and order situations in the country in the past and Military Courts have been in demand since the 1990s

A report of Crises Group Asia Report (2015) explains that the Army Public School (APS) Peshawar incident did not much change Pakistan’s anti-terrorist approach, except that it adopted a targeted National Action Plan (NAP) but this plan is yet to be implemented.

Pakistan can no longer afford to be an experimental laboratory to test different anti-terrorism strategies and mere reliance on the use of force to eliminate the menace is not a viable policy. It does not provide a durable solution for the domestic security challenge of the country while structural problems of the Criminal Justice System (CJS) are not serving the needful.

Another important structural weakness of Pakistan’s CJS is its failure to effectively deal with the present-day challenges as it is rooted in outdated colonial laws. Many of Pakistan’s criminal and civil prosecution laws are still based on the penal code of 1860. These old laws are technically inadequate to meet existing challenges. In addition, the Pakistani penal code is a puzzle in terms of technical language, which may result in monopolous interpretations by the lawyers and the judges.

A dysfunctional CJS could not serve unusual law and order situations in the country in the past and Military Courts have been in demand since the 1990s. Both major political parties—PMLN and PPP favored them to fight out terrorism in the past.

In January 2015, following a devastating attack by terrorists on the Army Public School in Peshawar, which resulted in the loss of approximately 150 lives, the then government (PMLN) and the opposition parties allowed trial of suspected terrorists in military courts for two years. This decision was made after the All Parties Conference (APC) agreed to modify the Army Act, of 1952 to expand the jurisdiction of military courts to expedite trials.

On January 7th, 2015, the Parliament passed the Constitutional Amendment, which included a sunset clause stating that the military courts would cease to operate after two years from its commencement. Between February 2015 and March 6th, 2017, the military courts convicted 274 individuals. These courts were established in various regions of Pakistan, with three each in Punjab and Khyber Pakhtunkhwa, two in Sindh, and one in Baluchistan. Through this Constitutional Amendment, several acts were incorporated into the first schedule of the Constitution, providing them with exemption and protection from Article 8 (1) and (2) of the Constitution. These articles invalidate any laws or enactments by Parliament that violate the fundamental rights protected under the Constitution. Additionally, the amendment to the Army Act, of 1952 granted military courts the authority to try civilians, including individuals, groups, organizations, or sects, for offenses related to violence and terrorism. This broadened the scope of offenses that fell under the jurisdiction of military courts, such as attacks on military officials or their installations.

A reliance on military courts alone is not a viable long-term solution

A Failed Criminal Justice System

The urgent demand for military courts in Pakistan over the past 20 years highlights the failure of the existing Criminal Justice System (CJS) to effectively address the country’s domestic security challenges. Relying solely on the use of force is not a sustainable solution. Instead, there is a need for comprehensive reforms to improve the capacity of civil law enforcement institutions.

One of the key issues with Pakistan’s CJS is the significant disparity between the total population and the limited number of courts and judges available. This results in a backlog of cases, leading to delays, corruption, and flawed decisions. Additionally, the outdated colonial laws that form the basis of Pakistan’s criminal and civil prosecution laws pose a significant challenge. These laws are ill-equipped to handle modern-day challenges and are often subject to ambiguous interpretations by lawyers and judges.

Furthermore, there is a lack of harmony between the various components of Pakistan’s CJS, exacerbating its shortcomings. While the establishment of military courts may provide a temporary solution to some of the systemic deficiencies, it is not a comprehensive remedy for the larger issues at hand.

In conclusion, Pakistan’s CJS requires significant reforms to address the structural weaknesses that hinder its effectiveness. A reliance on military courts alone is not a viable long-term solution. Instead, efforts should be focused on enhancing the capacity of civil law enforcement institutions, updating outdated laws, and promoting coherence among the different components of the justice system. However, terrorists cannot be allowed to get free because of weaknesses of the Judicial system therefore, there is a need to establish a Military Court to punish terrorists till such time that CJS is revamped to deal with demands needed to punish terrorists.

In simple words, Pakistan has to work on a multipronged strategy if the state is serious about fighting back against terrorism.

A Ray of Hope

The Anti-Terrorism (Amendment) Bill 2024 introduced is the prime necessity of the current situation. The bill empowers the government, armed forces, and other security forces to take immediate and effective action against terrorists and dangerous persons and thus, when there is a threat to national security, security agencies will be able to take timely action, which requires a robust security system.

The government on Friday introduced the bill in the National Assembly to restore the sunset clause of the Anti-Terrorism Act (ATA) 1997, which would give the Pakistan Army and other law enforcement agencies the power to arrest any suspected person who can be detained for questioning for three months. After the Army Public School incident, the government introduced the provision of Preventive Detention for inquiry for three months. Now, after a decade, the government has once again tabled the bill in the National Assembly, proposing to restore the same powers to law enforcement agencies for the next two years after the bill comes into force.

Khyber Pakhtunkhwa and Balochistan provinces have been facing a serious law and order situation for decades. After the recent attacks, the federal government reviewed the security situation with stakeholders. Subsequently, the government decided to give special powers to LEAs to detain terror suspects for three months without an FIR or court orders.

The amendment calls for Article 10 of the Constitution to be implemented, ensuring that the legal rights of prisoners are upheld during preventive detention. It includes provisions for continuous detention for more than three months if necessary under constitutional safeguards.

The amendment under section 2A states that these provisions shall remain in force for two years from the commencement of the Anti-Terrorism (Amendment) Act, 2024, allowing for a fixed period of application depending on the security situation and may be re-evaluated. Under the bill, Joint Investigation Teams (JITs) will be constituted comprising members of various law enforcement agencies and intelligence agencies. It aims to work against terrorist acts in a more effective and coordinated manner and the formation of such teams will not only increase information sharing but also enable investigations under a comprehensive strategy.

There is no doubt that the recent measures are necessary to address the growing threat of terrorism. Under the amendment, suspects are allowed to be detained as is done in other countries. The move is particularly aimed at those involved in heinous crimes and terrorism, as the low conviction rate in terrorism cases has necessitated reforms. Legal experts say these steps are necessary to tackle the growing threat of terrorism. Covers purely terrorism and terrorist activities and groups.

It is pertinent to mention that several countries have the concept of detaining suspects of heinous or anti-state crimes. The National Defense Authorization Act and the Patriot Act in the United States allow indefinite detention of a suspect. Turkey has seven years and Saudi Arabia, the United Arab Emirates, China, Egypt, and many other countries have an “indefinite” detention regime.

Legal experts also believe that due to poor investigation and prosecution, the conviction rate in terrorism cases is woefully low in Pakistan. It is therefore imperative that, while implementing the provisions of the Anti-Terrorism Act, “significant reforms and changes should be introduced in investigation, prosecution and judicial proceedings adopting international best practices.”

According to defense experts, incidents of terrorism are increasing in Pakistan, especially in Balochistan and Khyber Pakhtunkhwa. The terrorists caught in the are not being brought to justice due to which the terrorists are being encouraged and in these circumstances the coming of the Anti-Terrorism Amendment Bill is welcome and all the political parties should work on it.