19.01.2015 Author: Natalya Zamarayeva

Pakistan: Fight for Tougher Anti-Terrorism Legislation

P3242422222The terrorist attack on December 16, 2014 at a secondary school in the Pakistani city of Peshawar has convinced the military and political leadership of Pakistan to take urgent measures to curb extremism. One of the first steps was the lifting by Prime Minister Nawaz Sharif of the moratorium on death penalty, which was introduced in 2006 during the rule of President Pervez Musharraf. The head of the federal government, in his address to the nation, announced that the country’s political leadership had agreed to set up special military courts to try hardened terrorists. However, their establishment would require a constitutional amendment before they could become operational.

For these purposes, on December 25, 2014 the federal government approved the 20-point National Action Plan to combat terrorism, which the country’s leaders were quick to describe as a “decisive moment” in the fight against terrorism. The army has stepped up military action against militants in a number of agencies of Federally Administered Tribal Areas (FATA) bordering Afghanistan.

The tragedy in Peshawar (like most major terrorist attacks in different parts of the world) has revealed many weaknesses in the security of the country and has exacerbated contradictions in ruling power structures in Pakistan: between the judicial and executive branches of government, generals, the political opposition, orthodox parties, and the ruling civil administration. But, as analysis has shown, the driving force behind the tightening of anti-terrorism measures was generals, and not the civil authorities. So, even in August 2014 generals (for various reasons) firmly headed for the adoption of legislative provisions aimed at establishment of military courts and, urging the civil authorities, consistently approached their intended goal.

On January 1, 2015 President of the Islamic Republic of Pakistan Mamnoon Hussain signed the Protection of Pakistan Act. This was the first step towards the criminal prosecution of persons involved in terrorist activities. The document stipulated the granting of broad powers to military and law enforcement agencies in fight against terrorists. For example, the police and the military now have the right to detain suspects of terrorist acts without a warrant.

The need for this document was explained by Prime Minister Nawaz Sharif: “Pakistan is facing a real threat of militants who organize terrorist attacks and it is the government’s obligation to protect its citizens from such attacks.” Authorities followed one of the fundamental principles of fight against terrorism – the principle of priority measures to prevent, detect, and deter terrorist activities at their early stages.

The law defines terrorist organizations by listing their committed and planned crimes, and for the first time provides a definition of a “terrorist” as a person:

- admitting participation or knowing that he/she belongs to a terrorist group or organization under the protective banner of a religion or sect;

- whose actions are aimed at violating the integrity of Pakistan;

- taking up arms against Pakistan or participating in attacks on the armed forces or law enforcement agencies of Pakistan;

- kidnapping people for ransom;

- having or storing explosives, firearms, suicide jackets;

- using or planning to use vehicles for terrorist attacks;

- using or obtaining funds from any foreign or domestic terrorist sources;

- representing a threat or striking fear in civil society, or any part of the country’s population, sect, or religious minority;

- committing terrorist acts outside the territory of Pakistan while using the Pakistani territory to prepare for such acts;

- in regards to whom there is sufficient evidence that he/she, acting under the direction of or in association with other illegal elements, colluded with foreigners.

Now permission is enshrined in the legislation for law enforcement officials to “enter any premises and conduct a search without a warrant to arrest individuals who have firearms, explosives, vehicles, equipment, or objects that are used or may be used to commit an offense”.

The reader might form the wrong opinion about the urgency of the development of the Protection of Pakistan Draft Law. But we must not forget that in the past two years, its text was discussed in the lower house of parliament – the National Assembly. Tough confrontation was between two sides: the opposition and civil judicial authorities. In 2014, the opposition party (Pakistan People’s Party – PPP, Jamiat Ulema-i-Islam-Fazl – JUI-F, Justice Party – JP) characterized it as violating basic human rights. The judicial community of the country also resisted this work. The emergence of the new law has evidenced the “anti-terrorist” inaction of civil courts when considering the dangerous methods of crimes.

The Peshawar tragedy in December 2014 overrode the claims of the opposition to the Protection of Pakistan Draft Law, and it entered into force on January 1, 2015, being valid for two years. Its main provisions are: creation of special courts (military tribunals) and expedited review by them of court cases against civilians involved in terrorist activities. In total, five military judicial boards are to be formed in the administrative provincial capitals and the Federal District of Islamabad.

The public has interpreted this act of the authorities ambiguously. And if it generally supported the need for broader anti-terrorism measures, many perceived the statement on military tribunals very negatively. The parliamentary opposition has expressed concerns that the law could be used by the police and security agencies against innocent citizens and unwanted members of political parties in order to justify illegal detention and persecution. The leader of the orthodox political party JUI-F categorically rejected the Bill, describing it as a violation of the fundamental constitutional rights of Pakistan’s citizens. The International Commission of Jurists (ICJ) also expressed concern that the new law would only aggravate the human rights situation in the country.

The next step by the Pakistani authorities on the path to curb terrorism and extremism was the legislative consolidation of military tribunals referred to in the Protection of Pakistan Act. The only legal path is parliament’s adoption of the 21st Amendment to the Constitution of the Islamic Republic of Pakistan passed in 1973. Why has a question about the constitutional amendment arisen? The judicial system of the country has already faced an attempt to create military tribunals for casework of civilians suspected of terrorist acts, and won this challenge.

Pakistan’s history is full of surprising turns. The same legislation has been treated differently in different decades. For example, in 1998 the government of Prime Minister Nawaz Sharif promulgated Decree No XII 1998. One of its goals was to create special military courts in Sindh (in the mid 90s, a wave of terror had swept the province, especially the city of Karachi). But subsequently, in 1999, the Supreme Court declared such tribunals as unconstitutional. Military tribunals were instructed to transfer all court cases related to terrorism to anti-terrorism courts, acting in accordance with the Anti Terrorism Act (ATA) of 1997.

Given that the country’s recent history demonstrated the political activity of the judiciary and its power, in 2015 the legislative and the executive branches of government and the military establishment once again faced with the necessity to legally consolidate the creation and operation of military courts, whose work could not be overturned even by the Supreme Court of Pakistan. This was also particularly relevant due to the fact that a number of opposition parties (JUI-F, Jamiat-i-Islam, and JP) in early January, 2015, once again opposed the establishment of special military tribunals.

Under these conditions, the parliamentarians called for another amendment to the Constitution and amendments to the Pakistan Army Act (PAA) of 1952. As a result, on January 7, 2015, 242 deputies of the National Assembly (the lower house of parliament) endorsed the 21st Constitutional Amendment Bill and the Pakistan Army (Amendment) Bill 2015. Members of two orthodox parties and the opposition JP party abstained. Critics of military courts opposed the transfer of more powers to the army in a country whose sixty years of history has more than forty years of rule by military or civil-military administrations.

The establishment of military courts is a belated response to the authorities’ recognition that the judicial system of Pakistan does not have sufficient authority to prosecute terrorists. The military and the government said that they are necessitated by dire circumstances. “The courts, which will be operative for two years, will require a constitutional amendment before they could start functioning.”

Many have criticized both the Protection Act of Pakistan and the 21st Constitutional Amendment Bill, emphasizing the tendency to strengthen the power of the military. This is partly true. But only in part, because the civil administration, even during the reign of the Pakistan People’s Party (February 2008 – May 2013) and the Pakistan Muslim League Nawaz (which came to power in May, 2013), did not seek and could not enact the anti-terrorist civil legislation.

In 2009, the military command announced the new military doctrine of Pakistan. The principal difference from the former doctrine was to change the concept of the enemy. The main threat, according to Rawalpindi (office of commander in chief) was not the external enemy, but the internal enemy – rebels. Since then, there has been a clear gap between the military establishment and civil authorities in their approaches towards the rebels. Both the government of the PPP and the PML N in the early years of the twenty-first century repeated the same mistake – they initiated a dialog with the rebels and refused to develop a mechanism of legal responsibility for the perpetrators of attacks against civilians, religious minorities, soldiers, government officials, etc.

The price paid for inaction was the shooting of schoolchildren in Peshawar in December, 2014. The state policy and the failure of civilian law enforcement agencies in the fight against unlawful acts of extremists became one of the many reasons for the flourishing of such phenomena as terrorism.

In response to the measures taken by the authorities, militants declared a new wave of terror. On January 5, 2015, Pakistan Taliban leader Mullah Fazlullah delivered a video message, announcing planned attacks on children.

It now remains to monitor the effectiveness of the Pakistani authorities’ ongoing legislative and other measures to curb manifestations of terrorism in the country.

Natalya Zamaraeva, Ph.D., Senior Research Fellow, Pakistan section, Institute of Oriental Studies of the Russian Academy of Sciences, exclusively for the  online magazine “New Eastern Outlook”.

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