If the law can’t protect us, the spy agency must
Pakistan’s influential spy agency is in an uncomfortable spotlight once again, after being asked to explain to the Supreme Court the deaths of four people it had taken in custody.
The men had been accused of involvement in attacks on the army and the ISI, and were picked up from a jail in Rawalpindi after they were acquitted by courts for lack of evidence.
But there are clear signs Pakistan’s courts also have some explaining to do. They are ready to push the laws to their limits to convict Pakistan’s prime minister, but have acquitted 70 percent of key terror suspects in the last few years. Many of them were known terrorists and a large number of them had initially confessed.
There have been several such acquittals in the last three months.
A leader of a banned militant outfit who had told an Urdu newspaper in 1997 he had killed 102 people, most of them Shias, was acquitted last year because of lack of evidence. A court released him from house arrest last month.
Three sons of Swat rebel Sufi Muhammad, who were arrested after a military operation to fight an insurgency he led in the area, were acquitted in several cases of violence in November and December last year because there were no witnesses.
Radical Lal Masjid cleric Abdul Aziz was acquitted in November 2011 of charges including challenging the writ of the state, possessing illegal arms, abducting policemen and making provocative speeches – acts that were seen and reported on television.
A Sipah-e-Sahaba operative accused of the sectarian killing of a police officer and his son was acquitted in November, after the witness in the case was murdered. Two operational leaders of the same group in Mardan were released days before that. The Lahore High Court had ordered 25 operatives of the group off a police watchlist in October.
Opposition leader Chaudhry Nisar was so severe in his criticism of the ISI’s extrajudicial killings that he compared the military with the mafia. He too has a lot of explaining to do, after his party’s government in Punjab has allowed a number of banned sectarian and militant groups to carry out public rallies in the province. Key leaders of the party continue to woo extremist groups for right-wing votes.
And there is certainly a great deal of explaining that the government and the parliament have to do, for failing to formulate an anti-terror law that makes prosecution of these men possible.
Pakistan’s current anti-terror law was devised in 1997 to deal with ethnic and sectarian terrorism. The country has been devastated by suicide bombings, insurgencies and attacks on key government and military installations that have killed thousands of people.
But the law does not specifically deal with any of these acts. Aiding, abetting, planning and orchestrating suicide bombings, and training suicide bombers, or leading or being part of an insurgency, or directly attacking military personnel or installations, are not dealt with as specific terrorist offences.
If a suspect is arrested with explosives or for harbouring someone who possesses explosives, the law requires proof he was planning to use them in an attack.
Pakistan’s spy agencies have often been accused of illegal wiretapping. But the anti-terrorism law does not include a framework for legal electronic or other surveillance of suspects, after obtaining a warrant, that could be used as evidence in court. The testimony of policemen is not accepted as proof, and there is no effective program for protection of witnesses.
Ironically, the Anti-Terrorist Act is not applicable in the Federally Administered Tribal Areas, where most terrorist activity is planned and orchestrated.
“Nobody is above the law,” a Supreme Court judge told the ISI’s lawyer as he asked the agency to produce the rest of the men it had picked up in court.
But the problem with rule of law is that it as oppressing as it is emancipating. As a system of protocols, law ensures order. But all laws have inherent loopholes in them that can be exploited. This is usually done in the name of justice.
Why do rebels who kill hundreds of people and attack Pakistan’s key national symbols refer to modern notions of law and justice that they do not believe in? Because being outsiders, they can identify these loopholes and exploit them. That is what gives them a decisive advantage, and that is why they are winning.
As long as our courts and our politicians are blind to that, many of us count on the ISI for our defence.
The writer is a media and culture critic and works at The Friday Times. He tweets @paagalinsaan and gets email at [email protected]