INSIGHT AND FORESIGHT

December 29, 2014

COUNTER TERRORISM & OVERSIGHT

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For Pakistan, it is important to make the latest round of consensus on terrorism into an enduring reality. The three constitutional pillars of the state with a very strong executive backed by the army will have to evolve a new complementary Civil-Military equation to fight out this menace. It is full throttle and no half measures.

At last, we have a drift of counter terrorism. Skeletal outline on the sweeping canvas belie that the government and its interior ministry slept over terrorism for a year. The loud blurting’s of Chaudary Nisar Ali Khan on the floor were rattling cans devoid of mettle, grit and resilience. It also exposes the lethargy and callous attitude of the opposition parties for want of imaginative and working suggestions. Maximum time was taken by speedy trial courts and not surgical procedures to rout terrorism from every nook and corner of the country. Military, proficient in detail and contingency plans must have mused over the huffs and puffs of politicians like blind men describing an elephant with subjective experiences to reach a bare describable! Being well prepared, the army had the answers and way.  Much depends how the contingency plans of the army will shape into a concise national policy that leads the way for the people, executive and the judiciary.

Prime Minister Sharif has replaced Imran Khan with a bigger baggage. General Raheel Sharif with a clear road map will relentlessly push and prod towards a military led plan. Through an APC, the Prime Minister made a belated attempt at farming national consensus. The bare minimum achieved, as time passes will be vulnerable to cracks that lack detail. Civil-Military Supremacy that Asif Ali Zardari and Nawaz Sharif had set out to achieve is now a pipe dream. In the absence of good governance, the military was forced to fill the void. If political expediencies persist, the country could spiral into turmoil democracy can ill afford. As a blessing in disguise, this equation could be used to forge commonalities and perspectives in a politically led Civil-Military Alliance.

Speedy Trial Courts

The constitution of speedy trial tribunals manned by military officers (military courts) through political consensus is a no confidence on the role of our anarchic judiciary. Apex courts were found wanting thereby prolonging the misery caused by terrorism. Members of the Bar and Bench were biased. Since July 2008, the judiciary in disregard to checks and balances, had overarched beyond the ‘question of law’ and ‘political question doctrine’ to exercise extra constitutional powers. These courts came into being through violation of the constitution. Handpicked judges and magistrates propelled to glory are seen lacking experience, knowledge and elucidation. It will be up to the judiciary to reset its template annul past violations of the Supreme Court and let law take effect. If the judiciary stutters, legislations would not.

Counter Terrorism Policy will have to lay down detail procedures through legislation to remove legal anomalies and escape points. It is not just the constitutional cover to speedy trail tribunals, or the employment of armed forces in Aid of Civil Power but also the need to precede it with focussed legal reforms. In what framework would new courts convene remains to be seen? A limited declaration of war/emergency would make it easier. However, the questions of human rights, miscarriage of justice and oversight cannot be relegated.

Triple Oversight Mechanism

To deal with terrorism, post 9/11, governments around the world invoked special legislations to ensure credible legislative and judicial oversight. Pakistan needs a system of inherent accountability of the executive to impartial groups. Under the new arrangement, the government will have to constitute a triple oversight mechanism dealing with policy, political question doctrine and judicial oversight. These checks will be exercised by the parliament, provincial assembles and in-built mechanisms.

Executive Oversight

In democracy, the legislature is the classic model that enforces its unlimited writ (policy related) through parliamentary committees on the Prime Minister. Such committees will have to be made and empowered. The legislation could provide for inclusion of non-elected experts from diverse fields and armed forces. The mechanism though new would in course become efficient. These committees shall oversee the smooth function of the counter terrorism mechanism throughout the duration of intelligence and enforcement operations.

Intelligence Oversight

With relation to the obscure world of intelligence, the policy will also have to cater for the inherent extra-constitutional sovereign authority under a higher law of self-preservation not subject to normal judicial review. This law will need deliberations with the judge advocate branch of the army, legal fraternity, international experience and the Parliament. The intelligence agencies will have to be embedded with police powers and judges to form a water tight compartment with no leakage of information.  Under the ‘political question doctrine’, judges will have to avoid jurisdiction over intelligence controversies, allowing resolution of national security disputes to the government and its select parliamentary committees.

A selected judicial cadre will have to be co-opted with twin objectives to deal with questions of law relating to security and to act as surrogates for public and fundamental human rights. This will neither be outlawry nor a measure to facilitate sinister intelligence and enforcement officials to operate in a space of operational extra-judicial mechanism. The imbedded judiciary will act as public surrogate and directing political questions to the executive. 

Review Oversight

A major question will be the review jurisdiction of judiciary over sentences passed by speedy trial tribunals. This issue will have to be settled to meet the ends of policy or else the entire effort will revert to square one. The Chief Justice of Pakistan will have to play a formatting role.

Over Arching Role of Provinces

Under the 18th amendment, provinces will enjoy maximum powers in requisitioning armed forces for counter terrorism operations. They will also have to bear the cost of such operations. So a lot will depend how the provincial executives are co-opted in this policy making. Ideally the federal government with its limited writ should extend oversight mechanisms to the provincial assemblies and include them in policy making.

National Pacification Operations

Many internal vulnerabilities of the country can be offset by imaginative economic planning and strengthening the internal economic foundations. The onus of creating a harmonious environment conducive to fighting terrorism and countering narratives will rest on the reconciled Parliament. Ideally, the Prime Minister should extend this mood into a national government that pursues policies in tandem to bring immediate relief to the people. These pacification operations will have to be active and passive. Like the Red Book on terrorists, the Parliament will have to agree on a home growth led three year socio-economic development road-map to kick start the economy on sustainable basis.

Pakistan’s war on terrorism will have to be a synergised implementable policy involving every sinew of the state. This effort needs to be reflected in political parties, local governments, trade and labour unions, civil society and religious scholars and sweeping reforms.

Brigadier (Retired) Samson Simon Sharaf is a political economist and a television anchorperson. Email and twitter: samson.sharaf@gmail.com

 http://nation.com.pk/columns/27-Dec-2014/counter-terrorism-and-oversight

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