199705.15
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Fighting Terrorism with Constitution

The News
15-05-1997

In the first 100 days of our beloved government, the 14th constitutional Amendment Bill is being reportedly moved on 15th of May, 1997. Again, as per press reports, the bill is aimed at curtailing the powers of the judiciary from granting bail in the heinous offences and to effectively fight terrorism and sectarianism.

Nowhere, in the world have the people been able to fight terrorism with legal instruments. Terrorism is not there because the laws are inadequate or they are not draconian. Terrorism is a technique adopted by vested interest groups to achieve certain targets, to blackmail the incumbent authorities into submission on a particular point or agenda or to drift them from their strategies or commitments which are widely known and are enough open for everyone to know. This technique is always employed in the world context to achieve certain defined objectives.

For instance, in the case of Pakistan, terrorism may be employed by interested groups to force Pakistan to change its nuclear policy or committed stand on Kashmir. It can also be to blackmail the administration into submission on its bold economic agenda. It may be directed to destabilize the political atmosphere so as to make the investment atmosphere doubtful and uncertain; to create panic and uncertainty in the minds of potential investors.

At time involvement of foreign hands and even Pakistan’s own security agencies are blamed as root-cause of terrorism. In any case, terrorism needs dispassionate treatment whatever may be its cause; it will definitely be a misdirection to attribute rising terrorist activities to imperfection in the judicial system or inadequate legal framework. The ever-increasing incidence of crime is more because of the faulty system of detection of crime rather than the liberal approach of courts for bails and sentences.

The wave of sectarianism is also very old having its root in the history of mankind. Muslim history is also not empty of such a tale of misery and ignominy. A person who decides to kill another for his views is not deterred by the punishment provided for his action because the death sentence for his crusade, as per his beliefs, will take him straight to the heavens; his most cherished destination. Therefore, making his actions punishable with extreme Penalties has neither so far succeeded in deterring any such activist from dissociating himself from the “noble mission” nor will the withdrawal of the power to grant bail to such people ever furnish adequate solution of these problems. In fact, solutions are to be found elsewhere.

Administrative tribunals and courts have failed to furnish a solution to problems of delayed trials or that of the effective control over terrorist activities or sectarian riots anywhere. Since the administration wishes to have complete control over these tribunals and in that appointment, postings, and transfers of judges are to be made by the executive itself, an effort is always made to select favorites and hand-picked individuals who in the absence of security of tenure and fulfillment of criterion of proven integrity, knowledge and independence fail to command respect in society.

The courts under Suppression of Terrorist Activities were invariably called “terrorist courts”. The record from our own country would show that gravest of human rights violations were attributed to these tribunals and courts. The Supreme Court Bar Association constituted a committee to look into the affairs of the courts in Karachi. The report of the committee was shocking to our conscience and was nightmarish.

In Punjab, the STA courts have produced ‘big names’ like Lutf Ali Malik and Chaudhry Zahoor Hussain. Even the courts set up by the PML government in 1990 under Article 121(A) of the Constitution remained under serious criticism of the bar bodies and the world human rights organization, although the courts were manned by superior court’s judges and the forum of appeal was also very dignified.

In India, similar courts under TADA (Terrorism Activities Deterrence Act) are the subject-matter of worldwide criticism by human rights activists. Although basically constituted to try persons involved in terrorist activities, these courts ultimately are responsible for trying freedom fighters in Jammu and Kashmir, Assam, and Nagaland and other parts, where freedom fighters have launched their freedom movement from the strangulating hold of the Indian Union.

We are lucky in this behalf that the PML leadership has succeeded in Pakistan in forging greater national coherence, unity, and solidarity throughout the federation. As such the possibility of such an eventuality as exists in India can safely be ruled out, but what is the safeguard against the trial of political adversaries or those on the wrong side of the government; or against whom the bow of the State may bend tomorrow? What is the guarantee that the present tool of the party in power shall never be used against those who wish this country to become a role model of Rule of Law? What is the guarantee that the present tool of the party in power shall continue till eternity and until playing of the bugle by Israfeel?

If the senior vice-president of PML Sheikh Rashid Ahmad can face not only the prosecution but conviction of seven years rigorous imprisonment, and a charge of similar nature by Ijazul Haq, MNA, efforts can be made to find illicit arms or such others jurisdictional facts with some more people, thereby attracting jurisdiction of the ‘Terrorist Courts’. What is the safeguard against ‘improper’ and ‘unjust’ references to such courts?

The United States is also facing the threat of terrorism and has successfully contained its spread, although only for the time being, under the ‘great American Constitution’ and the “due process clause”. They have not faced any difficulty in seeking conviction of an innocent suspect Sheikh Umar, a blind scholar in the World Trade Centre blast without contemplation of the constitutional amendments; nor have they found the American Constitution inadequate to combat threats of terrorism after the Oklahoma blast where hundreds of lives were lost. Every American have nightmares about Muslim fundamentalism and expected terrorism from the Muslim world but Americans are not apparently thinking to amend their constitution to combat the threat of terrorism.

The United Kingdom is also not reconsidering to set up administrative courts and tribunals although IRA bomb threats are part of their daily life. In the last six months, I have missed three international flights on account of such bomb scares, during which underground is closed and air, rail, and roads links are cut off. But to the best of my knowledge, neither John Major nor Tony Blair has ever thought about setting up of speedy court to combat IRA activists. What they have done is that they have improved crime-fighting techniques and have sharpened their responses to such sophisticated crimes like terrorism. Maybe by following the same pursuit, it should benefit us more than invoking massive mandates in favour of repeated constitutional amendments.

It is for legal advisors employed by the government to think of an answer to this serious problem and advise the government correctly and properly rather than diverting them from their declared and proclaimed agenda of economic renaissance and rehabilitation. The government has successfully sailed through the thirteenth constitutional amendment and has sliced away the power of dissolution under Article 58(2b) of the Constitution and shall also succeed in having a similar amendment carried through to curtail for the power of the judiciary for granting bail or speedy trial of an accused person.

How many constitutional amendments shall be supplied for the host of issues which the country faced today? Should another amendment be the answers to these problems? It would be a pity if the new government and its characteristic leader which has received a historic mandate from the people of this country to achieve only and only one objective, i.e., to push for economic growth and progress at a time when country was starting economic collapse and financial bankruptcy in the face, were to stray away from the achievement of this objective.