South Asia Research and Analysis Studies

Lacunae in judicial system
Mohammad Jamil

Chief Justice Iftikhar Muhammad Chaudhry on Tuesday remarked that no person can be kept in detention without any evidence. Raja Irshad, counsel of Inter-Services Agency (ISI) informed the bench that all the accused were sent to detention centers according to the law. A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry resumed hearing of missing inmates of Adiala Jail. The bench also remarked that either bring evidence against the missing prisoners or release them. The security top echelons have been complaining about the holes in the existing anti-terrorism law, as a result of which terrorism suspects go scot-free by the courts for want of evidence, and then they continue with bloodletting of the innocent people and members of the security forces. From the remarks and observations by the judges in the case under reference, one can conclude that the seven accused of terrorism will be released.

In fact honorable judges also made observations about the inefficiency of the judicial system. Sheikh Azmat Saeed while delivering his address to the full court reference given in his honor to bid him farewell at his elevation as judge of the Supreme Court in May 2012, said: “Pakistan is perhaps one of the most regulated countries in the world with plethora of laws, yet the cherished goal of providing justice to the people remains illusive. It is the inefficiency of our legal system which has compromised its effectiveness. The procedures, rules, regulations and practices forming the basic fabric of the system were conceived in the 19th century and were perhaps best suited to the times”. Since the courts give their verdict on the basis of evidence, national assembly passed a fair trial legislative bill on 20th December authorizing the state to intercept private communications in order to apprehend terrorists.

It has formally paved the way for the government to tap phones and use e-mails and text messages as proof in trials. But this law should be applicable from the retrospective effect to bring the terrorists to book. The existing laws neither comprehensively provide for nor specifically regulate use of advanced and modern investigative techniques such as covert surveillance and human intelligence, wire tapping and communication interception that are used extensively in other countries, including the US, the UK and India. The bill passed by the National Assembly in Pakistan will enable the security agencies to gather evidence against terrorists through modern techniques and devices and make it acceptable to the courts for bringing them to justice. The security agencies of Pakistan have been complaining that they catch the terrorists and terrorism suspects but those are let off the hook by the courts for want of evidence that could hold in the court.

The problem is that human witnesses are loath to stand in the witness box to testify for the dread of terrorists and their ferocious sympathizers. Even the investigators shy away from collecting the hard evidence for fear of their own and their families’ lives. Coping up with such a multifaceted terrorism of huge enormity and dimensions decidedly requires extraordinary measures. And the recent enactment certainly is a necessary step in that direction.
The thugs have been slaughtering innocent citizens, including children and women in terrorist attacks on markets, shopping plazas, school children buses and places of worship. These merchants of death and destruction have been targeting sensitive security assets, including the army GHQ, and the ISI, navy and air force establishments. Anyhow, many accused are released because of lack of evidence or out of fear due to lack of adequate security for witnesses and judges.