Asia Report N°196 6 Dec 2010
EXECUTIVE SUMMARY AND RECOMMENDATIONS
The ineffectiveness of Pakistan’s criminal justice system has serious repercussions for domestic, regional and international security. Given the gravity of internal security challenges, the Pakistan Peoples Party (PPP)-led government in Islamabad, and the four provincial governments should make the reform of an anarchic criminal justice sector a top domestic priority.
The low conviction rate, between 5 and 10 per cent at best, is unsurprising in a system where investigators are poorly trained and lack access to basic data and modern investigation tools. Prosecutors, also poorly trained, are not closely involved in investigations. Corruption, intimidation and external interference in trials, including by the military’s intelligence agencies, compromise cases before they even come to court. Given the absence of scientific evidence collection methods and credible witness protection programs, police and prosecutors rely mostly on confessions by the accused, which are inadmissible in court. Militants and other major criminals are regularly released on bail, or their trials persist for years even as they plan operations from prison. Terrorism cases, too, produce few convictions.
The failure of prosecutors to achieve convictions in major cases, such as the June 2008 Danish embassy bombing, the September 2008 Marriott Hotel bombing in Islamabad, and the March 2009 attack on a police academy in Lahore, has weakened public confidence in the state’s ability to respond to terrorism. Despite the increasing urgency of reform, Pakistan’s police, and indeed the whole criminal justice system, still largely functions on the imperative of maintaining public order rather than tackling 21st century crime.
A military-led counter-terrorism effort, defined by haphazard and heavy-handed force against some militant networks, short-sighted peace deals with others, and continued support to India and Afghanistan-oriented jihadi groups, has yielded few successes. Instead, the extremist rot has spread to most of the country. The military’s tactics of long-term detentions, enforced disappearances and extrajudicial killings provoke public resentment and greater instability, undermining the fight against violent extremism.
Wresting civilian control over counter-terrorism policy, a key challenge of the current democratic transition, will require massive investments in police and prosecutors, specifically to enhance investigative capacity and case building. Successes in combating serious crime, including kidnappings-for-ransom and sectarian terrorism, during the democratic transition of the 1990s demonstrate that civilian law enforcement agencies can be effective when properly authorised and equipped. With the scale of violence far greater today, the government needs all the more to utilise political and fiscal capital to modernise the criminal justice sector.
Criminal justice cannot, however, be isolated from the broader challenges of the democratic transition. The repeated suspension of the constitution by military regimes, followed by extensive reforms to centralise power and to strengthen their civilian allies, notably the religious right, have undermined constitutionalism and the rule of law. General Zia-ul-Haq’s Islamisation of the constitution and laws during the 1980s altered the basic structure of parliamentary democracy, introduced religious, sectarian and gender biases into law and made the violation of fundamental rights not just common practice but a matter of state policy. As a result, Pakistan moved farther and farther away from international standards of justice. The current parliament has, through the eighteenth constitutional amendment, reversed many of these distortions and added new provisions that, if implemented, may indeed strengthen constitutionalism and political stability. More legal reforms are needed. Discriminatory religious laws remain in force, and the justice system is still predisposed towards miscarriage.
In May 2009, the National Judicial (Policy Making) Committee (NJPC), headed by the Supreme Court chief justice, produced the National Judicial Policy (NJP) 2009 to make the justice system more responsive to citizen needs. The policy applies enormous pressures on civil and criminal courts to resolve cases within a fixed timeframe. However, with a lopsided emphasis on speedier delivery, the NJP has failed to address critical weaknesses in the judiciary, including the criminal justice system. An already low conviction rate could decline even further. While slow delivery remains a critical problem, policymakers should avoid resorting to quick fixes and procedural short-cuts such as parallel court systems and informal dispute resolution mechanisms. Such measures, including anti-terrorism courts, have failed to produce the desired results, and have also undermined the quality of justice. An enhanced and reformed criminal justice sector remains the best and only sustainable option.
International allies, particularly the U.S. and the EU, should allocate the necessary resources to make Pakistan a strong criminal justice partner. A lopsided partnership with Pakistan’s military has yielded few sustainable counter-terrorism successes. Al-Qaeda affiliated jihadi groups continue to operate in the Pakistani heartland, undermining the country’s security and the security of its neighbours and the international community more broadly. The international community must shift the focus of security assistance to the civilian law enforcement agencies, which would yield long-term counter-terrorism dividends.
To the Federal Government of Pakistan and
1. Repeal all laws that discriminate on the basis of religion, sect or gender, including the blasphemy laws, anti-Ahmadi laws and Hudood Ordinances.
2. Amend the 1997 Anti-Terrorism Act to refine its definition of terrorism to include only those acts that are large in scale and intend to create a sense of fear and insecurity among segments of the public; and disband anti-terrorism courts (ATCs) and try terrorism cases in regular courts.
3. Amend the Criminal Procedure Code to establish a robust witness protection program, and make the protection of witnesses, investigators, prosecutors and judges in major criminal cases, particularly terrorism cases, a priority.
4. Address over-crowding in prisons by:
a) enforcing existing bail laws;
b) holding to account any trial judge failing to set bail where required by law;
c) passing a new law requiring judges to allow bail unless there are reasonable grounds to believe the prisoner would abscond or commit further offences; and
d) reforming the sentencing structure for non-violent petty crimes to include alternatives to imprisonment such as fines, probation and treatment.
5. Guarantee the rights of all prisoners under remand by:
a) ensuring that prison facilities are fully resourced, including with enough vehicles to transport prisoners to court on the designated dates;
b) ensuring that they are taken to court on the dates of their hearings;
c) taking action against jail authorities who assign labour to remand prisoners, prohibited by law; and
d) providing free legal aid to remand prisoners who cannot afford counsel.
6. Initiate a broad dialogue with stakeholders, including serving and retired senior police officials, jurists, criminologists, NGOs and other civil society groups to assess the strengths and weaknesses of the original Police Order (2002), and produce fresh bills in each legislature to strengthen law enforcement that have public support and political sanction.
7. Develop mechanisms for individual police stations to articulate resource needs and for these to be reflected in provincial police budgeting processes.
8. Carry out a comprehensive assessment of the gaps in investigation and prosecution, based on analyses of crime patterns, with the goal of identifying personnel, training and resource needs at the national, provincial and district levels; invest in producing cadres of specialists within investigation branches and agencies, in such fields as kidnapping, homicide, counter-terrorism and cyber-crime.
9. Engage the public as an effective partner in policing by establishing and empowering neighbourhood committees, citizen-police liaison committees and public safety commissions at the national, provincial and district level to oversee critical aspects of policing and by ensuring that police have adequate resources and operational independence.
10. Strengthen the police’s investigative capacity by:
a) computerising and maintaining centralised, serviceable records of all FIRs;
b) amending the Telegraph Act to establish clear protocols for investigators’ access to mobile phone data, and ensuring that this access is not undermined by the military’s intelligence agencies;
c) amending the Evidence Act to require investigators to incorporate scientific methods and data in investigations;
d) modernising the police force by enhancing scientific evidence collection, including DNA analysis, automated fingerprinting identification systems, and forensics, with particular emphasis on the provincial and district levels; prioritising completion of forensics science laboratories in Islamabad, in the case of the federal government, and Lahore, in the case of the provincial Punjab government; and allocating resources for similar laboratories in Sindh and Khyber Pakhtunkhwa provinces;
e) bringing the national forensics science laboratory under the Federal Investigation Agency, and the provincial laboratories under the respective criminal investigation departments, while guaranteeing operational independence and oversight;
f) appointing highly qualified scientists to head the forensics science laboratories, and making recruitment open to the private sector, with competitive salaries; and
g) requiring all potential candidates to the investigation branches to first serve as understudies to senior investigators; recruiting those who show potential; requiring them to undergo specialised training in specific fields such as homicide, counter-terrorism, cyber-crime and counter-narcotics; and providing regular refresher training, including through foreign exposure.
11. Prevent external interference in investigations by:
a) requiring the approval of the relevant public safety commission before an investigating officer in an ongoing investigation can be replaced; and
b) publicising instances of military interference in investigations, including pressure on the police to surrender prisoners to the military’s intelligence agencies, and raise such cases with the higher judiciary.
12. Strengthen the criminal prosecution services and police-prosecutor coordination by:
a) raising police and prosecutors’ salaries;
b) providing security of tenure to prosecutors, empowering them to reject weak cases, as well as specialised training in such fields as homicide and counter-terrorism, and integrating it with related police training programs;
c) mandating joint police-prosecutor committees to oversee investigations; and
d) establishing a committee within each prosecution service, headed by the prosecutor general and comprising respected jurists, to examine the number of cases an individual prosecutor prosecutes, reasons for trial delays, and the number of convictions and acquittals, including identifying causes for acquittals.
13. Disband all state-supported lashkars (militias) and take action against any individuals or groups pursuing vigilante justice, including against alleged militants.
14. Commit to impartial justice and end all deviations from the rule of law and constitutionalism by:
a) repealing parallel courts systems such as qazi (Sharia), National Accountability Bureau and anti-terrorism courts;
b) repealing all laws that discriminate on the basis on religion, sect and gender, including the blasphemy and anti-Ahmadi laws and the Hudood Ordinances; and
c) prosecuting any civilian or military officials responsible for enforced disappearances, extrajudicial killings and other human rights violations.
To Pakistan’s Higher Judiciary:
15. Shift the focus of the National Judicial Policy from short-term solutions for speedier delivery towards establishing a justice system that tackles the primary threats to internal stability and instills public confidence in the state.
16. Circumscribe the doctrine of the constitution’s basic features by limiting it to amendments that negate the spirit of parliamentary democracy, judicial independence and federalism, and remove reference to Islamic provisions, given their vagueness.
17. Respect the separation of powers enshrined in the constitution by:
a) limiting the Supreme Court’s use of suo motu powers to extreme cases of fundamental rights violations;
b) strictly interpreting Article 184 of the constitution to provide a clear definition of “public interest” that would prevent its broad use or abuse; and
c) prohibiting the provincial high courts from taking suo motu action, in accordance with the constitution.
18. Strike down all laws that discriminate on the basis of religion, sect and gender, as unconstitutional, if the government fails to repeal them.
To the International Community, particularly
the United States and the European Union:
19. Make Pakistan a strong criminal justice partner by shifting the focus of security assistance to civilian law enforcement agencies and criminal prosecution.
20. Support the modernisation and enhance the counter-terrorism capacity of the police and civilian security agencies, including by training investigators in modern methods of evidence collection, equipping forensic laboratories and assisting the computerisation of police records.
21. Send unambiguous signals to the military that illegal detentions, extrajudicial killings and other human rights violations in the name of counter-terrorism are unacceptable, by conditioning military aid on credible efforts by the military leadership to hold any military and intelligence officers and officials found committing such acts to account.
Islamabad/Brussels, 6 December 2010