The failure of our legal system

Fighting 21^st century insurgency with a set of 20^th century laws!

As a legal system, Pakistan’s response to the war on terror has been nothing short of miserable. The inability of our state apparatus to adapt itself to the changing nature of this threat is highly lamentable.

Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, broke down an effective legal system into its three constituent elements: law making, law determination and law enforcement. Theoretically speaking, if a state falters at one point it can lead to a paralysis of the entire system. Unfortunately and not too surprisingly, Pakistan has faltered on all three.

Consider law making. The country is entering the thirteenth year in its war on terror that has cost more than 43,000 lives and yet it still continues to lack an effective legal framework to govern the conflict. Pakistan’s law making has been characteristic of a sluggish legislature that has failed to pass new laws in response to the growing violence in the country.

Take for instance, the primary law on evidence, which dates back to a Presidential Order of 1984. This for many years, albeit a few amendments, has been the primary basis upon which the state has tried to prosecute terrorists. While there have been reforms to a limited extent, the pace of these reforms has been extremely slow. So by the time the legislature responded by passing the Fair Trial Act in 2013, 40,000 people had already died in the conflict.

Similarly, it was only during last month that Sindh became the first province in Pakistan to introduce a witness protection programme by passing the Sindh Witness Protection Bill 2013. Then again, like so many times, a witness protection programme was introduced this year when in fact it should have been in place at least a decade ago. Had that happened, the six witnesses in the Wali Khan Babar case who were systematically gunned down in a period of less than eleven months might still have been alive.

Another incident that illustrates this point is the federal government’s recent romance with the idea of granting the Rangers more powers, which somewhat culminated in the Anti-terrorism (Amendment) Ordinance 2013. One cannot help but repeat, that these are issues that should have been debated, let alone legislated upon, when violence in Karachi was still in its infancy. The fact that President Mamnoon Hussain amended the Anti-Terrorism laws through a Presidential Order fairly recently, is reflective of how fatigued the legal system really is.

The impact of this inefficiency falls on the judiciary. When cases are brought before the courts for determining and applying the law, the judiciary finds itself adjudicating upon a matter where the state is fighting a 21^st century insurgency with a set of 20^th century laws that were never intended to govern a conflict such as this. This obvious gap between law and reality make it difficult for the prosecution to establish culpability. Due to the absence of any protection for them, key witnesses to a criminal case either run away or refuse to give a testimony. Since there has been no law governing the gathering of intelligence until fairly recently, much of the evidence collected by the intelligence agencies over the past few years is inadmissible. This partly goes on to explain the large number of acquittals of high-profile terrorists in recent years.

This inability of the legal system to punish those who violate the law is in other words a failure of the state to enforce its own law. As already pointed out, law enforcement requires the existence of a broad legal framework that overarches the entire governmental structure. Despite developments such as the recent Presidential Order, the country is still in need of a specific framework, tailor-made for this conflict, encompassing all those stages that constitute a successful law enforcement operation: intelligence gathering, arrest, investigation, prosecution and conviction. The legal framework needs to rest upon the foundations of a national counter-terrorism strategy. It, thus, needs to go beyond law enforcement and also cover inter-agency cooperation and the division of powers between them. Until and unless, such lines are not drawn we will continue to read, as we did in the Abbotabad Commission report, about the infighting between the IB, the MI and the ISI.

Such internal conflicts are not unique to Pakistan. There was similar friction between the FBI and the CIA prior to 9/11. Lawrence Wright in his book, ‘The looming tower: Al Qaeda and the road to 9/11’ traces how close the US came on several points to discover Bin Laden’s plan but failed due to the lack of intelligence sharing amongst governmental agencies. Following the attacks, the two agencies overcame their respective differences and the US government responded by quickly passing the Homeland Security Act in 2002 followed by the USA Patriot Act to consolidate counter-terrorism efforts. A legal framework was used to unite different governmental efforts into a common national goal.

It is hard to imagine how many more lives our countrymen will need to lose and what other catastrophe will need to hit Pakistan before the country’s law enforcement agencies put aside their differences aside and start working towards a common goal. The government must put its operations in perspective, by providing a legal framework and a clear set of rules and guidelines on how the various law enforcement institutions need to respond as a constituent element of the larger national effort.

With the decision of engaging in dialogue with the Taliban looming in sight, one must throw a note of caution. No matter which way the dialogue process goes, the government must not lose focus of developing a larger framework that is essential to contain the varying strands of violence that run throughout Pakistani territory. Progress, if any, which looks highly unlikely, on talks with the Taliban must not deter and detract us from the larger goal of putting in place a legal framework for the future.

If Pakistan wants to succeed in fighting terrorism, or any future threat that emanates from its own territory, it needs to establish an effective legal system. An effective legal system would only exist where the law reflects not only the needs and aspirations of society but also the moral conscience of the nation. Once that is in place, the gap between law and reality will close, thus, making the enforcement of law easier and more efficient.

The author, studying law at SOAS, may be contacted at [email protected] and on Twitter @bbsoofi.