‘Hijrat Ullah’s acquittal is an eye opener

Barrister Amjad Malik

In Pakistan a debate is ignited due to untimely acquittal of terror suspect ‘Hijrat Ullah’ whether existing criminal justice system is apt to investigate, prosecute, convict and sentence those involved in heinous crimes such as terrorism, and suicidal missions in Pakistan.  In last quarter alone, acquittal for lack of evidence of many accused involved in either Marriott hotel bombing, or Manawa Attack in Punjab  begs the very question whether our existing system has the inbuilt capacity to deal with the 21^st century issue of radicalisation, & terrorism and bringing those to account. To me, existing prosecution system is old, and has inbuilt structural flaws including lack of coherent and direct communication between on ground intelligence gathering officers, investigating cadre and prosecutors. There is a huge gap of communication and unity of command. Even specialist anti terrorist court judges are confronted with the question of under training, over work and lack of security. Topping it all, witness protection is next to none. We also witnessed that in Karachi accused of terrorism offences were snatched  from police in a city court compound in June. Above all, like England and USA intelligence community’s high command is reluctant to share vital pieces of intelligence, informers report, sensitive tip offs in order to avoid compromise on their intelligence gathering mechanism as they lack trust on each other. Or shall I say they are aware of the pit falls of the bleak system in which they operate.  Keeping in view of these issues what can we do to reform our existing system so that we can bring more prosecutions, double the rate of convictions and sentence freely those involved in terrorism and reach to those masterminds who move their strings.

War on terror and increasing radicalisation on the name of religion and or ethnicity is a growing concern for Pakistan and international community. In order to deter and curb this menace spreading even post Afghan War, a joint collaboration is a must if we ever wish to come close to nail those involved. Internationally a joint cooperation unit must be set up to share intelligence where imminent crimes of violence and extremism resulting hundreds of casualties can be averted. The idea was floated by King Abdullah and UN & USA must take lead to bring that idea to reality, if we are serious.

Of course Parliament and political parties must have a discussion and set up a forum to seek ways and means to improve our existing mechanism and introduce measures which can tackle this new threat which has a potential to overthrow governments and threaten states to their very existence and may spread anarchy, civil war and massive undemocratic outlawed outbursts. In order to vanish breeding grounds, govts must avoid and address issues core to the hearts of ordinary civilians such as Palestine, Kashmir, and Prophet Muhammad ’s blasphemous caricatures, which has the potential to divide communities and gather for a cause worthy to some, and legitimate to many. Incidents of flotilla attack by Israel and US reluctance to condemn civilian killings add fuel to fire. Foreign policy concerns must be addressed if peace initiative is desired at homelands.

The ratio of conviction of those tried for terrorism is so low and is alarming. Mechanism of Prosecution needs immediate attention and improvements. First of all Pakistan needs a prosecution set up independent of police which has its own provincial and national directorate, independent recruitment process and mentoring and monitoring procedure. Currently it’s too muddled and party divisions affect its performance which must not compromise the overriding objective to protect national security and public from criminals of international rankings. We need to have a ‘State Prosecution Service’ which ensures independent prosecution, keeps a check on criminal investigation and separate that of genuine crime fighting to that of abuse of process and faulty unsafe investigation(s) and takes forward cases if they have greater chances of securing convictions.

Executive must understand the need to have a set up independent of the prosecutors and give wider checked powers to law enforcement specialist units which deals with special threats of terrorism and jointly assist each other in a coherent mechanism to avert attacks and God forbid if they happen, act quickly to arrest or chase those involved successfully. A specialist national security department and date collection centre is the need of the hour where military, police and executive presence is proportionate to the need and threat. Main purpose is that of realisation of that threat and then to act jointly.

Above all, how we deal with the issue of sabotage, foreign actors, and spies who are spreading money in the land to bring about hell and missing persons saga. I think there is a dire need of setting up a specialist court which adjudicate cases of citizens and or foreign nationals arrested which involves allegations of international terrorism, national security threat(s) and or espionage where those cases may not be tried in ordinary sessions courts because of a risk of compromising intelligence gathering mechanism, intercepted material and risks to joint co-operation with countries, groups, individuals and tribes. Pakistan is facing multifarious threats due to its strategic location and depth, and threats emanates from different directions. It may be from rival India in counter intelligence measures or Afghanistan due to on going war on terror or even Baluchistan factor where heavy foreign money is involved to achieve greater goal of curtailing China where foreign interference floats on the surface. where a lot of foreigners come to the attention of security community with a view to harm the national security, and may not be tried due to lack of a specialist mechanism under which intercepted material and intelligence prejudicial to national security is protected, preserved and secured.  Suggested court will alleviate the concerns of civil society if a person remains in custody for longer, legalize the detention, and empower the executive to detain people who pose a threat to the public, country’s security and the very existence and may not be identified and or brought to public for legal and security reasons. Missing persons case, and acquittal of Marriott bombing suspect including Hijrat Ullah (under appeal0 is a prime example.  A specialist body may be set up where if a certificate is issued by interior Ministry that a person is considered a threat to national security, a case is tried in that particular court (Commission). A court or a tribunal is set up under a vetted existing high court judge and or a newly appointed where two set of hearings  take place one in open, second a closed where lawyer, accused is not present and only vetted prosecutor general present a case. Accused are given a code name (a,b,c) and they are referred at all times with their code names and their nationality at no point is revealed so that intelligence is not compromised. Judge heading the court can authorize a statement to press and on most of the open hearings the session is conducted in a camera session where only accused and his attorney is present.

In UK (SIAC) a Special Immigration Appeals Commission was set up though legislation in 1997, a specialist tribunal adjudicating appeals where a person is considered to be a threat to national security, where most of the proceedings are conducted in camera where all the secret evidence is presented and analysed. In those hearings no lawyer and or accused is present. That model is successfully working in UK for the last decade and is considered Human Rights compliance in a mother of democracy and a land of human rights, then why can’t Pakistan have a similar system to avoid unnecessary criticism As I have been appearing before that commission for over 10 years, I think Parliament and those stake holders must come up with a joint resolution to understand the problem we face, and find a solution to defeat it with a solution which is compliant of the constitutional guarantees, upholds law and is need of the hour in order to protect the public and national security of Pakistan from increasing violence and terrorism.

Barrister Amjad Malik, is a Chair of the Association of Pakistani lawyers (UK) and acted for Pakistani Imam Maulana Shafiq Ur Rehman (in 1999) and Pakistani Student Shoaib Khan (in 2010) in their successful national security appeals.

26 June 2010