WAR ON TERROR

AND

CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN

PH.D. THESIS

Submitted by

Zafar Iqbal

Reg. No. NDU-PCS/PH.D/S-11/014

Supervisor

Dr. Farkhanda Zia Mansoor

Department of Peace and Conflict Studies

Faculty of Contemporary Studies

National Defence University

Islamabad

2016

WAR ON TERROR

AND

CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN

PH.D. THESIS

Submitted by

Zafar Iqbal

Reg. No .NDU-PCS/PH.D/S-11/014

Supervisor

Dr. Farkhanda Zia Mansoor

This Dissertation is submitted to National Defence University, Islamabad

in partial fulfillment for the degree of

Doctor of Philosophy in Peace and Conflict Studies

Department of Peace and Conflict Studies

Faculty of Contemporary Studies

National Defence University

Islamabad

2016

iii

Certificate of Completion

It is hereby recommended that the dissertation submitted by Mr. Zafar Iqbal titled “War on

Terror and Challenges for Criminal Justice in Pakistan” has been accepted in the partial

fulfillment of the requirements for the degree of Ph.D. in the discipline of Peace and Conflict

Studies.

____________________

Supervisor

____________________

External Examiner

Countersigned By

____________________ ____________________

Controller of Examination Head of the Department

iv

Supervisor’s Declaration

This is to certify that Ph.D dissertation submitted by Mr. Zafar Iqbal titled “War on Terror

and Challenges for Criminal Justice in Pakistan” is supervised by me, and is submitted to

meet the requirements of Ph.D. degree.

Dated: _________ Dr. Farkhanda Zia Mansoor

Supervisor

v

Student’s Declaration

I hereby declare that the thesis submitted by me titled “War on Terror and Challenges for

Criminal Justice in Pakistan” is based on my own research work and has not been

submitted to any other institution for any other degree.

Dated: _________ Mr. Zafar Iqbal

Ph.D. Scholar

vi

ABSTRACT

The US launched War on Terror (WOT) with an intent to bring the perpetrators and

abettors of the 9/11 incident to justice in its own terms and satisfaction. The US became the

sole judge in its own cause, ousted Taliban government and eliminated Al-Qaeda leadership.

This approach of retributive justice demonstrated the US hegemony and pursuit of realism.

Pakistan joined the WOT in the wake of US threats but became the subject of terrorism and

ultimately turned into a battlefield in the fight against terrorism. National and internal

security of Pakistan was jeopardized. Performance of the agencies of criminal justice system

became subject of open public criticism. Consequently, the Armed Forces had to assume the

responsibility of national security and administration of justice, which is against the principle

of tricotomy of power enshrined in the constitution.

This research proposes that the WOT has collapsed the whole edifice of criminal

justice system in Pakistan. In order to analyse this proposition, the research explores causes

of WOT and examines American rationale for initiating WOT. The study also explores

effects of WOT on national security and criminal justice system of Pakistan as well as

different parameters of its criminal justice system vis-à-vis terrorism. It also discovers

different theories of crimes and examines utility of different theories of punishments in

deciding terrorism-related cases. The study also discovers history and evolution of security

and anti-terrorism laws of Pakistan and the effects of amendments introduced after 9/11 on

the criminal justice in Pakistan. The research also examines role and efficacy of courts

martial as an alternative mechanism for criminal administration of justice in terrorism cases.

The study is mainly based on qualitative analysis and extensive review of literature

on the subjects of national security, peace and conflict, international humanitarian law, legal

theories and analysis of the laws relating to terrorism. The dissertation has been organized

into seven chapters, with separate introduction and conclusions. The study does not prove the

hypothesis to the hilt. Nevertheless, it concludes that the criminal justice system of Pakistan

did not succeed in meeting the challenges of WOT and play its effective role in eradicating

the menace of terrorism through justice. The study recommends that WOT may be

successfully fought through a comprehensive strategy based on equal cooperation, ownership

and devotion of all the stake-holders.

vii

ACKNOWLEDGMENTS

I express my deep gratitude to Dr. Farkhanda Zia Mansoor, Professor of Law in the

International Islamic Studies, Islamabad for supervising, steering and rendering intimate

guidance in completing this Ph.D dissertation. My research work would not have been

accomplished without her painstaking assistance. I also extend my thanks to Dr. Ishtiaq

Ahmad Choudhry, Head of the Department of Peace and Conflict Studies, Faculty of

Contemporary Studies, National Defence University, Islamabad for his encouragement and

intellectual support to complete this study. I also owe my profound thanks to Mr. Muhammad

Idrees and Mr Muhammad Ramzan, who helped and assisted me in compiling the data,

typing and composing this dissertation. My sincere appreciation and profound gratitude are

also due to Mr. Abdul Sattar for his very valuable editorial advice.

I must also acknowledge the support of my parents, sisters, brothers, wife and

children, who remained deprived of my due care and attention. Without their encouragement

and moral support, it was difficult for me to complete this work, especially when it was

undertaken along with my hectic official assignments. In particulars, I owe special thanks to

my sisters, who rendered many valuable suggestions for successful completion of this

dissertation.

Finally, I bow my head before Allah Almighty, who created me amonghst the best of

creatures, bestowed upon me His countless blessings and gave me the required wisdom and

vigor to sucessessully undertake this difficult but rewarding assignment.

viii

To Parents, Brothers, Sisters and Family

ix

TABLE OF CONTENTS

ABSTRACT…………………………………………..………………………………........ vi

ACKNOWLEDGEMENTS……………………………………………………………….. vii

DEDICATION……………………………………..……………………………………… viii

ABBREVIATIONS AND ACRONYMS ………………………........................................ xiv

LIST OF TABLES………………………………………….…….……………….………. xvii

INTRODUCTION 1

Statement of the Problem ………………………………………………………… 16

Hypothesis ……………………………………………………………………. 17

Independent and Dependent Variables …………………………………………... 17

Research Questions ………………………………………...…………………….. 17

Significance of the Study ………………………………………………………… 18

Justification and Likely Benefits ………………………………………................ 20

Objectives and Scope of the Study ……………………………………………. 20

Research Methodology …………………………………………………………… 21

Limitation of the Study…………………………………………………………… 22

Review of Literature ……………………………………………………………... 23

Organization of the Study ….…………………………………………………….. 30

CHAPTER 1

WAR ON TERROR AND THE UNITED STATES PURSUIT OF MILITANCY IN

PAKISTAN

34

1.1 Background and causes of WOT ………………………………………................. 36

1.1.1 Theory of Realism ……………………………………………………………….. 40

1.2 Reasons for US Pursuit of Militancy in Pakistan after 9/11……………................ 43

1.3 US Rationale for WOT and Pursuit of Militancy in Pakistan…………………….. 48

1.3.1 Just War Theory …………………………………………………………….......... 50

1.3.2 UN Charter and the Security Council Resolutions……………………………….. 52

x

CHAPTER 2

EFFECTS OF WAR ON TERROR ON THE NATIONAL SECURITY AND

CRIMINAL JUSTICE IN PAKISTAN ………………………………………………….

59

2.1 Internal Security ………………………………………………………………….. 60

2.2 Resurgence of Militancy ………………………………………………................. 65

2.3 Drone Attacks…………………………………………………………………….. 66

2.4 Economic and Political Debacles ………………………………………………… 67

2.5 Humanitarian and Internally Displaced Persons (IDPs) Issues…………………… 69

2.6 Allegations of Human Rights Violations ………………………………………… 71

2.7 Missing Persons Syndrome ……………………………………………................ 73

2.8 Application of International Humanitarian Law ………………………................ 77

2.9 Effects of WOT on Criminal Justice System in Pakistan ……………………….. 81

2.10 Major Terrorism Incidents during 2007-2015 ……………………………………. 85

CHAPTER 3

THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN - DIMENSIONS AND

PARAMETERS VIS-À-VIS TERRORISM …………………………………………….

97

3.1 Broad Parameters of Criminal Justice System in Pakistan ……………................. 98

3.1.1 Role of Police, Law Enforcement and Prosecuting Agencies …………………… 99

3.1.2 Role of Courts…………………………………………………………………….. 104

3.1.3 Role of Prisons …………………………………………………………………… 108

3.1.3.1 Offence or Crime ………………............................................................ ................ 110

3.1.4 Nature and Extent of Offences or Crimes as Acts of Terrorism in Pakistan……... 111

3.2 Theories of Crimes……………….......................................................................... 113

3.2.1 Biological Theories ………………………………………………………………. 113

3.2.2 Psychological and Socio-psychological Theories………………………………… 114

3.2.3 Sociological Theories…………………………………………………………….. 114

3.2.4 Crime-specific Theories………………………………………………………….. 115

3.3 Theories of Punishment……………….................................................................. 117

3.3.1 Theory of Retribution ……………………………………………………………. 118

3.3.2 Theory of Reformation and Rehabilitation ………………………………………. 119

3.3.3 Theory of deterrence …………………………………………………………….. 120

xi

3.4 International Legal Standards………………......................................................... 121

CHAPTER 4

HISTORICAL EVOLUTION OF CRIMINAL JUSTICE SYSTEM AND PRESENT

STATUS OF SECURITY AND ANTI-TERRORISM LAWS …………………………

134

4.1 Security and Anti-terrorism Legislation in the Post-independence to Separation of

East Pakistan (1947-1971)……………………………………………………...

135

4.2 Security and Anti-terrorism Legislation after the Emergence of New Pakistan till

Ouster of Mrs Benazir Bhutto (1972-1996) ………………………………………

170

4.3 Security and Anti- terrorism Legislation during Mr Nawaz Sharif and General Pervez

Musharraf regimes in the pre and post 9/11 tragedy (1997-2015) ……......

185

4.3.1 Anti-terrorism Act 1997 ………………………………………………………….. 187

4.3.2 Shari Nizam-e-Adl Ordinance 1999 and Sharia’h Nizam-e-Adl Regulation 2009.. 200

4.3.3 Actions (in Aid of Civil Power) Regulations 2011………………………………. 202

4.3.4 Investigation for Fair Trial Act 2013 ……………………………………………. 206

4.3.5 Protection of Pakistan Ordinance 2013 and Protection of Pakistan Act 2014……. 207

CHAPTER 5

TRIALS OF CIVILIANS BY MILITARY COURTS IN HISTORICAL PERSPECTIVE

AND THEIR ROLE IN CRIMINAL JUSTICE SYSTEM ………….

213

5.1 President Ayyub Khan Amends the Army Act …………………………………... 214

5.2 Prime Minister Bhutto Amends the Army Act …………………………………... 215

5.2.1 “Pakistan Army (Amendment) Act 1977” and Jurisdiction of Courts Martial over

Civilians Challenged ……………………………………………………………...

217

5.3

General Zia-ul-Haq Promulgates Martial Law and Establishes Military Courts or

Tribunals by Amending the Constitution …………………………………………

220

5.4

Prime Minister Benazir Bhutto Amends Constitution to Establish Special Courts for

Trial of Heinous Crimes ………………………………………………………

221

5.5 Prime Minister Nawaz Sharif Establishes Military Courts through “the Pakistan

Armed Forces (Acting in Aid of Civil Power) Ordinance 1998” to Try Civilians..

221

5.6 President Musharraf Promulgates “Pakistan Army (Amendment) Ordinance 2007” to

Bring Civilians within the Purview of Army Act……………………….

225

5.7.1 Prime Minister Nawaz Sharif Amends the Constitution and Pakistan Army Act in the 227

xii

Background of APS Peshawar Carnage ……………………………………

5.7.2 Reaction to 21st Constitutional Amendment and Pakistan Army (Amendment) Act

2015…………………………………………………………………………...

231

5.7.3 Arches of Supreme Court Judgment in “21st Constitutional Amendment and Pakistan

Army (Amendment) Act 2015” Case……………………………………

234

5.7.4 Analysis and Significance of Supreme Court Judgment for Criminal Justice in

Pakistan………………...........……………….........................................................

237

CHAPTER 6

DISCUSSION AND ANALYSIS ………………………………………………………… 245

6.1 Is WOT justifiable on the Touchstone of Realism? ……………............................ 246

6.2 Is American Rationale for Initiating WOT and Pursuit of Militancy in Pakistan

Justifiable? ………………...........…………………………………………………

249

6.3 Did the Judicial Organs Play their Role in Combating Terrorism and

Crime? ………………...........………………..........................................................

256

6.3.1 Role of Police, Law Enforcement and Security Agencies ……………………….. 262

6.3.2 Role of Lawyers and Attorneys …………………………………………………... 264

6.3.3 Role of the Criminal Courts ……………………………………………………… 267

6.3.3.1 Discretion of the courts and theories of punishment ……………………………... 270

6.3.4 Role of Prisons …………………………………………………………………... 270

6.4 What is the Effect of Different Amendments Introduced in the Security and Anti-

terrorism Laws of Pakistan after 9/11? ………………………...............................

274

6.4.1 Effects of Anti-Terrorism Act 1997 in the pre- 9/11 Scenario …………………... 274

6.4.2 Effects of Anti-terrorism Act 1997 in the post-9/11 Scenario …………………… 278

6.4.2.1 Issues of missing persons and Anti-terrorism Act 1997 …………………………. 278

6.4.3 Effects of Actions (in Aid of Civil Power) Regulations 2011 …………………… 282

6.4.4 Effects of Investigation for Fair Trial Act 2013 ………………………………….. 284

6.4.5 Effects of Protection of Pakistan Act 2014 ………………………………………. 286

6.5 Did the Amendments Introduced in the Security and Anti-terrorism Laws of Pakistan

after 9/11 Improve, Complicate or Compromise Criminal Justice System in Pakistan?

290

xiii

……………………………………………………………….

6.6 Do the Legislations Introduced after 9/11 Conform or Violate International Legal

Standards? ………………………………………...................................................

294

6.7 Do the Trials of Civilians by Courts Martial Offend Human Rights?..................... 299

6.7.1 Mechanism of Trial before Courts Martial……………………………………….. 301

6.8 Are Military Courts an Alternative Mechanism for Criminal Administration of Justice

in Terrorism Cases? ……………………………………………………….

311

6.9 Conclusions……………………………………………………………………………. 313

CHAPTER 7

RECOMMENDATIONS ………………………………………………………………… 321

7.1 Need to Understand the Genesis of Terrorism and its Root Causes …….……….. 322

7.2

Need to Reconcile Security and Anti-terrorism Laws and Avoid their Multiplicity and

Ambiguity ……………………………………………………….

325

7.3 Need to Introduce Judicial Reforms in FATA …………………………………… 331

7.4 Need to Reconcile Difference of Perceptions ……………………………………. 335

7.5 Need to Understand Significance of Deterrent Approach and its Implementation.. 340

7.6 Need for Capacity Building and Inculcating Sense of Responsibility and Ownership

………………………………………………………………………...

343

7.7 Need to Implement Policy of Reward and Punishment for Judicial and Police

Officials …………………………………………………………………………..

348

7.8 Need to Reconcile and Resolve the Issues of Human Rights and Missing Persons 351

7.9 Need for Jail Reforms ……………………………………………………………. 355

7.10 Need to Implement the Judgments of Supreme Court and National Judicial Policy

2009 ……………………………………………………………………….

360

7.11 Need to evolve a strategy of winning the hearts and minds ……………………… 362

7.12 Need to Implement National Action Plan 2014 ………………………………….. 367

BIBLIOGRAPHY ………………………………………………..…………….………….

371

APPENDIX………………………………………………………………………………… 396

xiv

ABBREVIATIONS AND ACRONYMS

APS Army Public School

ASF Airports Security Force

ATA Anti-terrorism Act 1997

BLA Baloch Liberation Army

BLF Baloch Liberation Front

CPEC China Pakistan Economic Corridor

CrPC Criminal Procedure Code

DPO District Police Officer

ECL Exit Control List

EU European Union

FATA Federally Administered Tribal Areas

FBI Federal Bureau of Investigation

FC Frontier Constabulary, Frontier Corps

FCR Frontier Crimes Regulation, 1901

FIA Federal Investigation Agency

FMDA FATA Disaster Management Authority

GB Gilgit Baltistan

GHQ General Headquarters

GCC Gulf Cooperation Council

HRC Human Rights Council

IB Intelligence Bureau

ICC International Criminal Court

ICJ International Court of Justice

ICTY International Criminal Tribunal for the former Yugoslavia

IDPs Internally Displaced Persons

IED Intensive Explosive Device

IG Inspector General

IHL International Humanitarian Law

IO Investigating/Interrogation Officer

ISAF International Security Assistance Forces

xv

ISI Inter-Services Intelligence

JPMC Jinnah Post Graduate Medical Centre

KP Khyber Pakhtunkhwa

LB Lashkar-e-Balochistan

LEA Law Enforcement Agency

MO Military Operations

NACTA National Counter Terrorism Authority, 2009

NADRA National Database and Registration Authority

NJP National Judicial Policy 2009

NATO North Atlantic Treaty Organization

NDU National Defence University Islamabad

NODEFIC Norwegian Defence International Centre

NWFP North West Frontier Province

NORDEFCO Norwegian/Nordic Defence Cooperation Organization

OEF Operation Enduring Freedom

OHCHR Office of High Commissioner for Human Rights

PAA Pakistan Army Act 1952

PATA Provincially Administered Tribal Areas

PILDAT Pakistan Institute of Legislative Development and Transperancy

PLD All Pakistan Legal Decisions

PLJ Pakistan Law Journal

PMDC Pakistan Medical and Dental Council

POPA Protection of Pakistan Act 2014

POTA Prevention of Terrorist Activities Act

PPC Pakistan Penal Code

PTV Pakistan Television

Sec Section

SFMU Special Forces Military Unit

SC Supreme Court of Pakistan

SHO Station House Officers

SSP Senior Superintendent of Police / Sipah-e-Sahabah Pakistan

xvi

TDPs Temporarily Displaced Persons

TTP Tahreek-i-Taliban Pakistan

TNSM Tehrik-i-Nifaz-i-Shariat-i-Mohammadi

T2F The Second Floor

UBA United Baloch Army

UNO United Nations Organization

UNSC United Nations Security Council

WOT War on Terror

WMD Weapons of Mass Destruction

xvii

LIST OF TABLES

1. Table 2.1 - Fatalities in Terrorists Violence in Pakistan (2003-2015) 64

2. Table 2.2 - List of High Profile Cases (2004-2007) 84

3. Table 3.1 - Hierarchy of Criminal Courts in Pakistan 107

4. Table 3.2 - Comparative Analysis of International Legal Instruments 125

5. Table 6.1 - Comparative Analysis of Anti-terrorism and other laws of

Pakistan

397

1

INTRODUCTION

The incident of 9/11 had challenged the sovereignty of America but the ensuing War

on Terror (WOT)1 and United States of America’s pursuit of militancy in Pakistan adversely

affected the unity, security and sovereignty of Pakistan.2 Pakistan chose to join the WOT

against its wish but subsequently assumed the same to be its own war when the battlefield

was shifted into Pakistan and US hunt for militants extended inside Pakistan. Resultantly, the

menace of terrorism,3 militancy and radicalization extended beyond the tribal areas and

engulfed the whole of Pakistan, causing irreparable damage to its socio-religious, political,

administrative, economic, legal, security and other institutions. US tried to justify WOT and

pursuit of militancy in Pakistan on the basis of just war theory,4 its inherent “right of self

1The WOT was initiated by United States of America against Al-Qaeda and its leadership who was harbouring

in Afghanistan and accused of masterminding the attack on the twin towers in New York on September 9, 2001.

Pakistan as a matter of fact had no role either in supporting Al-Qaeda or any other non-state actor in launching

the said attacks. However, US rage and anger was such that it managed to fetch involuntary support from

Pakistan against the Taliban rule in Afghanistan. The language and tenor of President Bush in his State of the

Union address reflects his anger and unconditional support of the world for his military campaign in

Afghanistan. See “US President George W. Bush, White House, State of the Union Address, January 29, 2002,”

available at http://www.whitehouse.gov/news/releases/20020129-11.html, accessed on August 29, 2011. 2Marc Ambinder and David W Brown, “The story of US Special Forces infiltrated in Pakistan”, The Atlantic,

February 15, 2012.

3“Today few words are as politically or emotionally charged as “terrorism” but it is still not clear what exactly

“terrorism” is? Generally speaking, “terrorism” is the use of politically-motivated violence or terror by the state

or non- state actors and groups. It is a derisive and subjective term with negative connotations applied to one’s

enemies and opponents.” This has been observed by Rana Eijaz Ahmad, “War against Terrorism or War for

Terrorism” (2007), The Journal of Political Studies, Vol. 11, accessed on May 7, 2016. Also see Barrister

Saadia Abbasi, “Anti-terrorism Laws and Way Forward in Dealing with Terrorists in Comparison with

Contemporary Countries”, Pakistan Army Green Book 2014, (Islamabad: Crystal Printers, 2014), pp. 18-31. She

has explored different definitions of terrorism developed over a period of time and in the backdrop of 9/11

tragedy. She referred to individual, group, political and state terrorism; and observed that there is still room for

a conclusive definition of terrorism. 4Just war theory ordains that war may only be waged when inevitable, for a just cause by a just authority; while

its conduct and culmination should also be just. In the primitive Roman society, even wars against non-

Catholics were considered as just wars. So far as the just authority is concern, it used to be fetiales, the priests

monitoring international treaties, in the Roman. See Brian A. Garner, Black’s Law Dictionary, (USA: Thomson

West, 2004) pp. 164, 883-884. See also Augustine, The City of God, translated by Bettenson (New York:

Penguins Books, 1972), pp. 6-13, as quoted by Bradley L. Herling in “Machedicy Or Just War Theory in an

Age of Terror”, Existenz, Volume I, Numbers 1-2 (Fall 2006), pp. 75-76 and available at http://wwwbu.edu/paideia/existenz. Augustine had been resisting war on the basis of the teachings of

Christianity; however, he had to consent for war when the enemy reached at the gates of Rome. Basics of the

just war doctrine have been discussed in Chapter 2. However, see for example: James F. Childress, “Just War

Theories: The Bases, Interrelations, Priorities, and Functions of Their Criteria.” Theological Studies, No

39,1978, pp. 427-445; Gene Sharp, “Beyond just war and pacifism: nonviolent struggle toward justice, freedom

and peace”, Ecumenical Review, April, 1996, available at

http://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_18310385/print?tag=artBody;coll; “Just War Theory”

at http://www.justwartheory.com and www.iep.utm.edu/justwar; accessed on March 24, 2016.

http://www.whitehouse.gov/news/releases/20020129-11.htmlhttp://wwwbu.edu/paideia/existenzhttp://findarticles.com/p/articles/mi_m2065/is_n2_v48/ai_18310385/print?tag=artBody;collhttp://www.justwartheory.com/http://www.iep.utm.edu/justwar

2

defence”5 and “Security Council Resolutions”;6 however, its justifications always remained

subject to criticism and legal scrutiny, with low moral standing as it had exceeded the right of

self defence. WOT and US pursuits of militancy in Pakistan were characterized by her

hegemonic designs,7 rather than just war or self defence.8 The WOT and US pursuit reached

the saturation point with all its pros and cones including elimination of Osama Bin Laden in a

Special Forces operation in Abbottabad on 2 May 2011,9 trust deficit between the two main

allies of WOT especially after the targeted massacre of Pakistani troops at Salala post on 26

November 2011 by US led NATO forces,10 followed by blockade of logistics supplies to

NATO troops in Afghanistan by Pakistan,11 deliberate absence of Pakistan from Bonn

Conference of December 201112 to record her protest in the wake of Salala tragedy13 and the

5Article 2(4) of the UN Charter forbids “threat or use of force against the territorial integrity or political

independence of any state”; while its Article 51 reads: “Nothing in the present Charter shall impair the inherent

right of individual or collective self defence if an armed attack occurs against a Member of the United Nations,

until the Security Council has taken measures necessary to maintain international peace.” It is the provisions of

Article 51, which were invoked by America for justifying attack on Afghanistan and launch of WOT. 6For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540

(2004) and 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the

said resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member

states to fight terrorism utilizing all available means, so as to ensure “international peace and justice.” For

conflicting views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of

defining and building consensus”, IPRI Journal XII, No. 2 (Summer 2012), pp. 58-75. 7US redefined its strategy to implement “the Project for New American Century” to extend “the benefits of Freedom across the globe”, and Bush doctrine i.e. “to counter terrorism and democratic regime charge”. See

The White House Washington, “the National Security Strategy of the United States of America 2002” available

at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. 8After winning the cold war, US prepared the blueprint to capitalize its surplus military forces and defence

resources to extend its hegemony and corporate privatization throughout the world. See for example, “Project

for old American Century, New American Century”, available at www.oldamericancentury.org. See also Dr.

Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN and OIC, (Islamabad: NUST

Publishing, 2014), pp.1-2; Rana Eijaz Ahmad, “Security, Political Dimensions and Consequences of NATO

Expansion in the Region”, South Asian Studies, Volume 25, Number 2, July-December 2010, pp.413-418; Rana

Eijaz Ahmad, “War against Terrorism or War for Terrorism” (2007), The Journal Of Political Studies, Vol. 11;

Fernando R. Teson, “Ending Tyranny in Iraq,” Ethics and International Affairs, Volume 19, No 2, 2005,pp. 1-

20, www.onlinelibrary.wiley.com.doi. For US justification of WOT on the basis of just war doctrine, see for

example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009, available at

http://userpages.Umbc.edu, accessed on April 7, 2016. 9Amna Yousaf Khokhar, “Operation Neptune Spear: A watershed in war against terrorism”, Institute of

Strategic Studies Islamabad, available at www.issi.org.pk. See also Philip Sherwell, The Telegraph, May 7,

2011, available at www.telegraph.co.uk , accessed on March 24, 2016. 10The unprovoked attack claimed lives of 24 Pakistani soldiers including officers. See Noor ul Haq,

“Abbottabad and Salala Attacks 2011” (2012), IPRI Factfile available at

https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011, accessed on April 14, 2014.

See also www.defence.pk portal, accessed on February 29, 2012. 11 Ibid 12 Many conferences were held on Afghanistan issue since the launch of American military campaign in

2001.The International Conferences on Afghanistan described as “Afghanistan and International Community:

From Transition to Transformation Decade” was held in Bonn on December 5, 2011, which was not attended by

http://www.un.org/Docs/screshttp://www.infomation/http://www.oldamericancentury.org/http://www.onlinelibrary.wiley.com.doi/http://userpages.umbc.edu/http://www.issi.org.pk/http://www.telegraph.co.uk/https://www.scribd.com/document/180506511/Abbottabad-n-Salala-Attacks-2011http://www.defence.pk/

3

Congressional hearing/debate initiated on 8 February 2012 in the House Sub-committee on

Oversight and Investigation by American Congressman Dana Rohrabacher seeking “right to

self determination” for the people of Balochistan,14 which lies within the exclusive domain

of Pakistan, followed by tabling a bill/resolution on the same issue in the House of

Representatives within a short span of two weeks.15 Describing Pakistan a “disastrously

dysfunctional country”, reluctance of White House to lobby for subsidized sale of eight F-16s

to Pakistan and suspension of foreign military financing for the said sale by the American

Congress16 as well as its refusal to support Pakistan’s bid to join Nuclear Suppliers Group

Pakistan to record its protest on Salala incident. “Collection of Afghan Agreements with Official Text from

2001 to 2011” is available at reliefweb.int/report/Afghanistan/Afghanistan-agreements-collection-official-text-

2001-2011. For details of the conferences, see peacemaker.un.org/afghanistan-bonnagreement2011 and

www.cimicweb.org. See also Britta Petersen, “Bonn minus Pakistan”, The Express Tribune,

http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on April 29, 2016. 13Shahid R. Siddiqui, “Confine your operation to Afghanistan, Islamabad tells Washington”, October 12, 2010,

available at axisoflogic.com. See also “Pakistan: NATO attack inflames tense ties with US”, November 27,

2011, available at www.cnn.com. American CIA had calculated that Taliban cannot be defeated unless the

sanctuaries in Pakistan are destroyed with more attacks inside Pakistani territories. America planned and reacted

accordingly. See also “NATO air attack on Pakistan was self defence”, The Guardian, September 27, 2011,

www.theguardian.com; Britta Petersen, “Bonn minus Pakistan”, The Express Tribune,

http://tribune.com.pk/story/302576/bonn-minus-pakistan/, accessed on 24 March 2016. 14 Noor ul Haq, “Abbottabad and Salala Attacks 2011” op. cit.; Huma Imtiaz, “US congressman tables bill for

Baloch right to independence”, the Express Tribune, February 18, 2012, available at tribune.com.pk., accessed

on 24 March 2016. See also “US lawmakers raise issue of ‘Baloch self-determination”, DAWN Islamabad, 9 February 2012, p 14; “Senators criticize US interference,” DAWN Islamabad, February 10, 2012, p 3;

Najmuddin Shiekh, “Rohrabacher & Balochistan,” DAWN Islamabad, February 29, 2012, p 7. 15Ibid. 16 Obama Administration had promised sale of eight F-16s to Pakistan on subsidized rate of 270 million US

dollars with 450 million dollars American aid against the actually cost of 700 million US dollars so as to meet

its security needs and fight against terrorism. However, American Congress, on 29 April 2016, suspended the

Foreign Military Financing for Pakistan on the plea that these might be used against India. On 19 May 2016, the

House of Representatives passed the National Defence Authorisation Act, which required Obama

Administration to certify, before releasing the requisite aid, if Pakistan has launched desired operation against

Haqqani network, American military aid, funds or equipments are not used against minorities seeking religious

or political freedom and release of Dr Shakil Afridi, who was instrumental in locating and eliminating Osama

bin Laden. The last two conditions were included on the move of Rohrabacher. This in fact demonstrates lack of

American interest in the security needs of Pakistan, as it does not need logistic support or defence supplies

through Pakistan and has finalized phased plan for ultimate withdrawal of troops from Afghanistan. This is the

repetition of American betrayal to Pakistan in the 1990s, when in the wake of Soviet retreat and withdrawal

from Afghanistan; America had not only refused to deliver F-16s to Pakistan but declined to return the money

paid in advance. It is also unfortunate that US President Barak Obama in an interview to an American magazine had uttered the words to describe Pakistan a dysfunctional state. For details, see Anwar Iqbal, “F-16s right

platform for Pakistan’s counter-terrorism war: US” and “F-16 sale in jeopardy”, DAWN Islamabad, May 1,

2016, pp. 1 and 8. Muhammad Alam Khatak, Defence Secretary of Pakistan, and Chief of the Army Staff

General Raheel Sharif also raised the issue of F-16s with General Joseph L. Votel, Commander US Central

Command, who visited the Ministry and GHQ on 9th of May 2016. They shared concern of the Armed Forces

regarding suspension of grant of purchase of F-16s and necessity for Pakistan to fight the WOT. 24 May 2016

was the last date for Pakistan to bid for the purchase of F-16, which elapsed without any breakthrough, leaving

Pakistan to explore other options to meet its defence requirements. See Moed Yusuf, “ Two Pakistans” and “F-

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4

(NSG)17 depict that US has neither anything at stake in Afghanistan nor is concerned with

security needs of Pakistan or is interested to maintain any lasting friendship with Pakistan,

except for the advancement of her global political interests.18

The WOT embraced the whole of Pakistan like an octopus, grabbing all its spheres in

its fierce full clutches. Consequently, not only the political, social, religious, economic,

geographical, legal and moral fibers were critically affected but military doctrines were also

redefined, strategic policies reshaped and principles of foreign policy and international

relations reformed, so as to protect the security of Pakistan from being compromised.19

Militancy, terrorism, violence, ethnicity and intolerance cropped up in the society, which

created law and order situation beyond the capacity of the police to control;20 and thereby

inviting the Armed Forces of Pakistan to act in aid of civil power.21 This situation diverted

attention of the Armed Forces from their primary responsibility of protecting the country

against any external aggression to the internal security and fighting the menace of

radicalization, extremism, terrorism and militancy.22 Targeted explosions on military

16s issue raised with Centcom Commander”, DAWN Islamabad, May 10, 2016, pp. 1 and 9. See also Anwar

Iqbal, “US House imposes strict restrictions on aid to Pakistan”, DAWN Islamabad, May 21, 2016, p. 16. 17America supported India in her bid to join NSG and denied any such support for Pakistan. Despite the fact that

India has not yet signed NPT, President Obama supported India’s application to join NSG but denied the same support to Pakistan, who had also applied for its membership to be decided in NSG meeting held on 23-24 June

2016 in Seoul, North Korea. When Pakistan approached America, it was suggested to seek support of the 48

members NSG, instead of lobbing for American support. For details, see “India wins Obama’s support for NSG

bid” and Anwar Iqbal, “US asks Pakistan to seek NSG’s acceptance not individual endorsement”, DAWN,

Islamabad June 8 and 10, 2016, pp. 1 and 5. 18See Baqir Sajjad Syed, “Aziz cautions US against upsetting S. Asian Strategic Stability”, Anwar Iqbal, “China

opposes India’s bid to join NSG”, “Pakistan, US trade blame for bad patch in ties” and “Slipping Pak-US ties”,

DAWN Islamabad, June 10 and 11, 2016, pp. 1, 5 and 8. 19Lieutenant General (Retired) Ali Muhammad Jan Oarakzai, “Situation in FATA: Causes, consequences and

the way forward”, Policy Perspectives, Volume 6, Number 1, January-June 2009, Institute of Policy Studies,

Islamabad, available at www.ips.org.pk., accessed on March 27, 2016. See also Dr RaziaMusarrat, “US War on

Terrorism and its Impact on South Asia” (2007), Journal of Political Studies, Vol. 11, p2, accessed on 24 March

2016, citing Dr Noman Umar Sattar, “War against Terrorism: Implications for Pakistan”, National Development

and Security, Rawalpindi (Summer/2004), Volume XII, Number 14, pp. 31-34. 20Munir Akram, “Pakistan’s war on terrorism”, DAWN Islamabad, July 6, 2014, p. 8. See South Asian

Terrorism Portal Database at www.satp.org, Pakistan Institute for Conflict and Security Studies and Centre for

Research and Security Studies reports for 2015, which give details of the fatalities and analysis of terrorism related incidents in South Asia and Pakistan. 21Article 245(1) of the 1973 Constitution of Pakistan permits that “Armed Forces shall act in aid of civil power”

only when so called upon by the government. 22 Brigadier Raashid Wali Janjua, “Civil- Military Relations-The Impact of Internal and External Factors in

Reshaping the Balance of Civil Military Relations”, NDU Journal, 2010, pp. 27-46; Dr. Noman Omar Sattar,

“Terrorism: Dynamics of the new Wave”, Margalla Papers, 2009, pp. 22-39. Since 2002, military had been on

the hunt of terrrists in FATA consisting of seven districts i.e. South and North Waziristan, Bajur, Aurakzai,

Mohmand, Khyber and Kurram agencies. Miliitary had launched offencives in different discticts of the said

http://www.ips.org.pk/http://www.satp.org/

5

installations and security forces,23 blowing up of girls schools, presence of huge quantity of

explosives and weapons, incapacity of law enfacement agencies to combat terrorism,

challenge to the writ of the government, prevailing sense of insecurity, economic disparity,

increase in foreign loans, price hike and poverty, weakening of political institutions and the

criminal justice system,24 threats of UN intervention by describing the Armed Forces

operations against the militants and terrorists as ‘non-international armed conflicts’ and

highlighting the allegations of violations of International Humanitarian Laws (IHL),25 are

said to be some of the consequences of WOT to Pakistan.

There is no denying the fact that Pakistan had been reluctant to join the US WOT for

multiple reasons; including evident threats to her security and sovereignty, constitutional

obligations to maintain friendly relations with neighboring countries, respect for UN Charter,

which protects sovereignty and independence of the nation states. However, despite having

provided for an effective judicature under Article 175 of its Constitution and declared in its

preamble and Article 40 the manifest desire and resolve to promote international peace and

agencies, which include operations in the name of Al-Mizan, Zalzala, Black Thunderstorm,Sher Dil, Rah-e-

Rast, Rah-e-Haq, Rah-e-Nijat, Koh-e-Safaid and finally Zarb-e-Azb launched on 15th day of June 2014 in North

Waziristan agency. 23 For example: GHQ attack on 10 October 2009, Mehran Naval Base Karachi attack on 22 May 2011, Badbher Airbase Attack on 18 September 2015, attack on Quaid-e-Azam International Airport Karachi on 4 June 2014,

attack on Army Public School Peshawar on 16 December 2014. 24For examples of the deteriorated law and order situation in the country, rampant terrorism, challenges to the

writ of the government and national security from different angles, see judgment of the Supreme Court in 21st

Constitutional amendment case cited as District Bar Association Rawalpindi v Federation (PLD 2015 SC 401).

See also Watan Party v Federation of Pakistan (PLD 2011 SC 997) p.1098 and Pakhtunkhwa Public Service

Coordinators, “Impact of Terrorism on Pakistan”,

http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan accessed on May 15, 2016 25For allegations of human rights violations, see for example: The Hands of Cruelty published in 2012 and is

available at https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-

areas/. The report was followed by a letter no TG ASA 33/2012. 016 dated 20 December 2012 of Mr John

Dalhuisen, Senior Director Research of Amnesty International, to Prime Minister Raja Pervaz Ashraf,

highlighting human rights violations in tribal areas and criticizing Actions (in Aid of Civil Power) Regulations

2011, for giving legal protection and impunity to Armed Forces for violation of human rights during the

military operations in tribal areas. “Torture in 2014” is available at

https://www.amnesty.org/en/search/?contentType=2561&tid=2034&term_node_tid_depth=1789&p=133 ,

accessed on March 31, 2016. See also Human Rights Commission of Pakistan, “State of Human Rights in 2015”, (Lahore: HRCP, 2016). Also see Niaz A. Shah, Islamic Law and The Law of Armed Conflict: The

Armed Conflict in Pakistan, (London: Rutledge, Taylor & Francis Group, 2011) pp. 134, 148-150. For

meanings of IHL, see The Hague and Geneva Conventions of 1949, which are generally regarded as the main

sources of modern IHL, which govern armed conflicts. This has been observed by the International Court of

Justice in legality of the threat or use of ‘nuclear weapons’, Advisory Opinion, 1999 I.C.J. 226, 256 (Jul 8)

declaring that “two branches of the law applicable in armed conflict have became so closely inter-related that

they are considered to have formed one complex system” - François Bugnion “Droit international humanitaire

coutumier” (2007), Swiss Review of International and European Law, pp 165-214.

http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistanhttps://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-areas/https://www.amnesty.org/en/latest/news/2012/12/report-exposes-hands-cruelty-pakistan-s-tribal-areas/https://www.amnesty.org/en/search/?contentType=2561&tid=2034&term_node_tid_depth=1789&p=133

6

security, foster good will and friendly relations among all nations, and encourage settlement

of international disputes by peaceful means, Pakistan was portrayed as a terrorist and failed

state. It may be appreciated that constitution has been recognized as the supreme law of any

state and reflects the will of the people of that State.26 It lays down, inter alia, the guiding

principles of policy to be followed by various organs of the state; whereas, preamble of any

constitution describes in brief the need, objectives and contents of the ensuing constitution

and the issues to be dealt therein.27 Analyzed on this principle, international peace and

harmony emerges as a predominant will of the people of Pakistan; whereas “domestic

tranquility and common defence” are the manifest objectives of establishing the US

Constitution.28 It is in this backdrop and being a weaker nation confronted with serious

internal and external threats that Pakistan has been submitting to the American will and

compromising on US pursuit of militancy in Pakistan whereas US has been toeing its

doctrine of “common defence and domestic tranquility” which is associated with launching

offensives and challenging the sovereignty of other nations, as is evident in the Bush

doctrine,29 may that be at the cost of violating United Nations Charter30 or managing UN

resolutions in the name of individual and collective self defence31 in her favour and against

the country who might cause any potential or hypothetical challenge to the American

interests.32 The degree and frequency of such violations by US multiplied after the collapse

26Emmanuel Zafar, The Constitution of the Islamic Republic of Pakistan, Volume I (Lahore: Irfan Law Book

House, 1992), pp. 24-25. 27The State v Zia-ur-Rehman (PLD 1973 SC 49). 28Preamble to the Constitution of the United States of America 1789. American Constitution was presented to

states for ratification on 28th day of September 1787. Until 21 Jun 1788, nine states ratified it; while it was given

effect from 4th day of March 1789. 29The White House Washington, “The National Security Strategy of the United States of America 2002”

available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012. The

doctrine emphasises on “counter terrorism across the globe and a policy of democratic regime change”. 30See Article 2(4) of the UN Charter which reads: “All members shall refrain in their international relations

from the threat or use of force against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the purposes of the United Nations”. 31See for example: “UN Security Council Resolutions” 1269, 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540 (2004), 1625, 1805 and 1963 (2010), available at http://www.un.org/Docs/scres. On the other

hand, Article 51 of the UN Charter reads: “Nothing in the present Charter shall impair the inherent right of

individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the

Security Council has taken measures necessary to maintain international peace.” 32For example: “UN Security Council Resolutions” 1368 (2001), 1373 (2001), 1377(2001), 1535 (2004), 1540

(2004), 1963 (2010), available at http://www.un.org/Docs/scres, accessed on July 27, 2011. However, the said

resolutions do not define or differentiate “terrorism” viz-a-viz “freedom fighting” but stress the member states

to fight terrorism utilizing all available means, so as to ensure “international peace and justice”. For conflicting

http://www.infomation/http://www.un.org/Docs/screshttp://www.un.org/Docs/scres

7

of Soviet Union and the incident of September the eleventh.33 Afghanistan, Iraq, Egypt, Syria

and even Pakistan, who has been graded as a terrorist state by and on the behest of US, are

the living examples of US interference in the name of right of self defence, democratic

regime change and execution of its hegemonic political order in the recent and current

history.34

The desire for peaceful co-existence is inherent in every nation and recognized as a

right of every nation state in the United Nations Charter, which provides for international

peace and security. This commitment of the comity of nations received a severe blow in the

aftermath of WOT and had devastating effects on the domestic peace, internal security and

sovereignty of Pakistan and other countries of the globe including America itself that had the

best security apparatus. The existing administrative structure and judicial system became

handicapped to combat the menace of terrorism. Consequently, many countries of the world

amended their security and anti-terrorism laws. Establishment of the Department of

Homeland Security, promulgation of USA PATRIOTS Act 200135 and The John Warner

Defence Authorization Act;36 New Control Orders Regime37 and Academic Technology

Approval Scheme (ATAS) 2007;38 Prevention of Terrorist Activities Act (POTA) 2002;39 the

views on definition of terrorism, see Nadeem Ahmad, “Conceptualizing terrorism: Problems of defining and

building consensus”, IPRI Journal XII, no. 2 (Summer 2012), 58-75. 33After winning the cold war, America prepared the blueprint to capitalize its surplus military forces and

defence resources to extend its hegemony and corporate privatization throughout the world. See for example,

“Project for old American Century, New American Century”, available at www.oldamericancentury.org,

accessed on 04 April 2016. See also Dr. Shahid Ahmad Hashmat, International Conflict Resolution: Role of UN

and OIC, (Islamabad: NUST Publishing, 2014), pp.1-2. For American justification of WOT on the basis of just

war doctrine, see for example: Tamie Harrison, “On the war against terror as a just war”, October 20, 2009,

available at http://userpages.Umbc.edu, accused on April 7, 2016. 34The White House Washington, “the National Security Strategy of the United States of America 2002”

available at http://www.infomationclearinghouse.info/article.2320/1665.htm, accessed on March 2, 2012; Adam

Richards, “George W Bush: the 9/11 terrorist attack and war on terror”, Chapter 13, Lesson 6,

transcript.study.com; Cui Bono, “9/11 false flag operation: Huge tipping point as state-sponsored terrorism is

exposed”, August 31, 2014, State of the Nation, available at stateofthenation2012.com. See also Zerohedge,

“George Bush Idiotic ‘Axis of Evil’ speech - How the Neocons Blundered the US into Confrontation with Iran

and Paved the Way for ISIS”, October 22, 2015, available at davidstockmancontracorner.com., accessed on

March 24, 2016. 35 “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct

Terrorism Act 2001” 36The Act allows American President to impose martial law and deploy troops anywhere in America to suppress

public disorder. 37Under the New Control Orders Regime, British Police and law enforcement agencies (LEAs) were given

unprecedented powers to detain any suspect without charging him for 28 days. 38Academic Technology Approval Scheme (ATAS) 2007 provided more strict criteria for foreign students

except those hailing from European Union.

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8

Pakistan Army (Amendment) Ordinance 2007,40 amendments in Anti-terrorism Act (ATA)41

1997 and establishment of National Counter-terrorism Authority (NACTA) in 2009,42

followed by promulgation of National Judicial Policy (NJP) 2009,43 the Actions (in Aid of

Civil Power) Regulations for FATA and PATA signed by the president of Pakistan on 23

Jun 2011,44 Investigation for Fair Trial Act 2013,45 Protection of Pakistan Act 2014,46

Constitution (21st Amendment) Act 2015 and Pakistan Army (Amendment) Act 201547 may

be cited as examples of the necessity of these laws and resolve of the concerned states to

eradicate and combat terrorism.

39Though repealed when the BJP government in India was ousted in 2004, POTA 2002 recognized confessions

before police as admissible in evidence and put the responsibility on the accused to prove their innocence. 40PLD 2007 (Supp-I) Federal Statutes 18). For details of the emergency and its subsequent validation by the

Supreme Court headed by Justice Abdul Hameed Dogar, see Tika Iqbal Muhammad Khan v General Pervez

Musharaf (PLD 2008 SC 178). General Pervez Musharaf had also previously proclaimed emergency on 12

October 1999, held the Constitution in abeyance and issued Provisional Constitution Order on 14 October 1999.

For contents of the emergency and the order, see PLD 1999 Central Statutes 446 and 448. The Ordinance was

promulgated by President General Pervez Musharraf in November 2007; however, it was not validated by the

Parliament. 41The Anti-terrorism Act was repeated amended, in the backdrop of WOT, vide Anti-terrorism (Amendment)

Ordinance (VI of 31 January) 2002 (PLD 2002 Central Statutes 202), Anti-terrorism (Amendment) Ordinance

(CXXV of 15 November) 2002 (PLD 2003 [Supp (Part I)] Federal Statutes 1014, Anti-terrorism (2nd

Amendment) Ordinance (CXXXIV of 23 November) 2002 (PLD 2003 [Supp (Part-I)] Federal Statutes 1070,

Anti-terrorism (Amendment) Act (XIII of 19 Mar) 2013 (PLD 2013 Federal Statutes 443), Anti-terrorism (2nd

Amendment) Act (XX of 26 Mar) 2013 (PLD 2013 [Sup] Federal Statutes 468), Anti-terrorism (Amendment)

Ordinance (VII of 14 October) 2013 (PLD 2014 [Sup (Part II)] Federal Statutes 172), Anti-terrorism (Amendment) Act (VI of 15 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 134), Anti-terrorism

(Amendment) (2nd Amendment) Act (VII of 20 June) 2014 (PLD 2014 [Supp (Part II)] Federal Statutes 203).] 42National Counter Terrorism Authority (NACTA) was established in 2009 to coordinate and receive

intelligence from all intelligence agencies, share real time intelligence amongst all law enforcement, security

and intelligence agencies, devise and executive counter terrorism policy of the government. NACTA was

created as an independent entity with an executive committee chaired by Interior Minister and responsible to the

Prime Minister. Although the authority had the legislative support in terms of NACTA 2013 (PLD 2013 [Sup

(Part I)] Federal Statutes 119), yet its formation and functioning is still shrouded with mystery in the

intelligence supremacy game or lack of seriousness of the government to activate NACTA. Recently,

government has assigned NACTA to form a core group consisting of representatives of the federal and

provincial governments, civil society, political parties and international groups to revisit and suggest reforms in

the criminal justice system within the scope of National Action Plan. See also Iftikhar A. Khan, "Criminal

justice system revamp plan approved”, DAWN Islamabad, May 27, 2016, p. 3 43PLD 2010 Journal 7. 44President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.11

(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at pages

241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 45PLD 2013 (Sup) Federal Statutes 45. 46 Protection of Pakistan Act 2014 was assented by the President on the 9th day of July 2014 and is available at

PLD 2014 [Sup (Part II)] Federal Statutes 177. Earlier Protection of Pakistan Ordinance 2013 (PLD 2014

Federal Statutes 42) was promulgated, which was followed by the Protection of Pakistan Rules 2013 (PLD 2015

Federal Statutes 5), promulgated by the federal government on 5th day of December 2013, as empowered under

Section 20 of the Ordinance. 47PLD 2015 Federal Statutes 1 and 3 respectively. The enactments were described as Act I and II of 2015

respectively.

9

History of criminal justice system and security laws of Pakistan is deep rooted and

has its origin in the legislations made by the British in the Indo-Pak sub-continent.48 Their

intention was to rule the people and serve them only to the extent that they remain

subservient and obliged to their rulers. This view is forfeited from the facts that initially they

had different rules for the local and the European troops in India. Even two different

standards of punishments were followed for the native military personnel and European

Army officers.49 However, subsequently the Indian Army Act 191150 and the Indian Army

(Suspension of Sentences) Act 192051 provided uniform and consolidated laws for the whole

body of Indian troops serving as part of the British Army in India. Despite this discrimination

in the early days of their rules, the British reconciled the laws and administered justice

amongst the subjects placed in similar circumstances; and followed the principle of equality

before law to a reasonable extent. However, when it came to the political questions,

continued rule against the will of the people and suppression of their rights, ensued the

Movement or War of Independence 1857. As a consequent thereto, the stringent legislations

and graver punishments prescribed thereby could not impede the path of independence for

the people of sub-continent. Explosives Act 1884,52 Foreigners Act 1946,53 Works of

Defence Act 1903,54 Explosive Substances Act 1908,55 Prevention of Seditious Meetings

Acts 1911,56 Frontier Crimes Regulation 1901,57 Official Secrets Act 192358 did not succeed

48Indian Independence Act 1947 read with Government of India Act 1935 provides the basis for government of

the independent Pakistan till new constitution is promulgated. See 10& 11 GEO VI, Chapter 30. See also

Government of India Act 1935 (26 Geo V, Chapter 42), (Lahore: PLD Publishers, 1952), which also contains

the said 1947 Act. 49Imperial Gazette of India 1907, Volume IV, Chapter XI as cited in Manual of Indian Military Law 1937,

(Delhi: Defence Department, Government of India, 1937), pp. i-iv. Until 1824, death sentence was awardable

only to native officers and soldiers; while they were not awarded imprisonment or transportation. It was finally

in 1911, a consolidated uniform Act i.e. the Indian Army Act 1911 was promulgated, which repealed previous

Articles of Wars. See also Justice S.B. Malik, Compendium of Laws of Defence Services, (Allahabad: The

University Book Agency, 1991), pp. xlviii and xlix. 50 Ibid. 51 Ibid. 52M. A. Farani, Criminal (Local & Special Laws) Minor Acts, (Lahore: Lahore Law Times Publications, 2005),

pp. 520-527. 53Foreigners Act 1946, The Registration of Foreigners Act, 1939 and The Foreign Relations Act 1932 are

available in Arif Ali Mir, Manual of Foreigners Laws in Pakistan, (Lahore: Irfan Law Book House, 2005), pp.

1-24, 46-48 and 73-76. 54Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence,

1987), pp. 1295-1315. 55M. A. Farani, op. cit., pp. 527-528. 56Pakistan Code (Vol VI) 1966, p. 51. 57Kazi Muhammad Ashraf, Punjab Laws (Vol I), (Lahore: Mahmood & Company, 1964).

10

in restoring peace and stability in the sub-continent; rather helped in the creation of two

independent states of India and Pakistan. After the independence, Pakistan also confronted

the law and order issues in Khyber Pakhtukhwa (KP), Balochistan and Bengal province of

East Pakistan now Bangladesh. Leaving aside India’s negative role in creating internal

disturbance and challenges to the integrity and security of Pakistan, which are still

continuing, neither the above said laws nor new laws such as Security of Pakistan Act

1952,59 East Bengal, Punjab and North Western Frontier Province Disturbed Areas (Special

Powers) Ordinance 1962,60 the West-Pakistan Maintenance of Public Order Ordinance

(MPO) 1960,61 Defence of Pakistan Ordinance 1965,62 Criminal Law Amendment (Special

Tribunal) Ordinance 196863 and Defence of Pakistan Ordinance 197164 succeeded in averting

separation of East Pakistan and creation of ‘Bangladesh’, as the political issues may not be

resolved through legislations to suppress the rights and desires of the people and seeking

their unconditional obedience. Continued failure or disregard to administer free and fair

justice breads unrest, disloyalty, disunity and ultimately irrational and exaggerated demands

of the people which may not be fulfilled, unless the rights of others or sovereignty of the

country is compromised. This has been experienced in the case of East Pakistan.

After the fall of Dhaka and installation of the government of Mr Zulfiqar Ali Bhutto,

followed a unanimous Constitution of 1973 created a hope for unity, fraternity, sovereignty

and rule of law in the West Pakistan now Pakistan. But the lust for continued retention of

power, self-righteousness and demand for extra provincial autonomy created another scene

for unrest and internal disturbance in the country, which necessitated promulgation of

Prevention of Anti-National Activities Act 1974,65 Private Military Organizations (Abolition

and Prohibition) Act 1974,66 Suppression of Terrorist Activities (Special Courts) Act 1975,67

58Manual of Pakistan Military Law (Volume II), (Rawalpindi: Government of Pakistan, Ministry of Defence,

1987), pp. 1277-1288. 59PLD 1952 Central Acts 288. 60PLD 1962 Central Statutes 608. 61PLD 1961 W.P. Statutes 30. The Ordinance was promulgated in pursuance of the Presidential Promulgation of

7 October 1958. 62PLD 1965 Central Statutes 262. 63PLD 1968 Central Statutes 92. 64PLD 1972 Central Statues 31. 65PLD 1974 Central Statutes 151. 66PLD 1974 Central Statutes 50. 67PLD 1975 Central Statutes 89. The Act was repeatedly amended during 1987-1991.

11

Criminal Law Amendment (Special Court) Act 1976.68 However, the said laws could neither

prevent anti-Bhutto government movement of Pakistan National Alliance (PNA) nor save

him from the ill-fate of death sentence in Nawab Muhammad Ahmad Khan murder case.69

During his reign as Prime Minister, Mr Bhutto had to neutralize Khan Abdul Ghaffar Khan,

Nawab Muhammad Akbar Khan Bughti, Khair Bakhsh Marree factors70 in the provinces of

KP and Balochistan. The legislative measures though helped him maintain national integrity

and unity for which he had to even call the Armed Forces to act in aid of civil power and

declare persons subject to the Pakistan Armed Forces laws on active service71 and commit

the political leaders and workers of opposite parties having anti-state and militant elements in

preventive detentions and the prisons, yet he could not save his government.

General Muhammad Zia-ul-Haq succeeded Mr Bhutto and despite the factor of

‘jiyalas’, who were loyal workers of the Pakistan People’s Party and mourned on the ouster

of Mr Bhutto’s government, his execution and Movement for Restoration of Democracy

(MRD), succeeded in winning confidence of the people of the three provinces either in the

name of Islamization or bringing the opponents of Mr Bhutto in the political stream by

exalting them on higher portfolios of Governors or Chief Ministers. He also succeeded in

neutralizing Bhutto and jiyalas factor in Sindh, especially in Karachi, by creating and

patronizing Muhajir Quami Movement (MQM), later converted into and described as

Muttahida Qaumi Movement. Despite the fact that MQM gave recognition and representation

to the suppressed, neglected and poor class, but the consequences of its politics suffered by

the nation so far are disappointing and devastating. MQM followed coercive politics of

68PLD 1976 Central Statutes 189. The Act was further amended vide Criminal Law Amendment (Special Court)

(Amendment) Act 1976 of 23 August 1976 (PLD 1976 Central Statutes 593). 69Details of the PNA movement and the legal battle fought by the first lady to save her husband are available in

Begum Nusrat Bhutto v Chief of Army Staff (PLD 1977 SC 657-763)

70 Khan Abdul Wali Khan along with other Pakhtoon and Baloch leaders of his National Awami Party (NAP)

including Mir Ghoaus Bakhsh Bizinju, Sardar Khair Bakhsh Marri, Sardar Attaullah Mangel etc were arrested

and lodged in Sihala Special Jail for one month preventive detention in February 1975. NAP was also banned

under Section 6(1) of the Political Parties Act 1962 and its funds frozen, for allegedly acting against the

sovereignty and integrity of Pakistan; promoting and advocating self-determination for the Baloch and Pakhtoons, maintaining and encouraging private and tribal lashkars who endangered lives of the innocent

citizens and even attacked the law enforcement agencies in Lesbella/Balochistan. While Khan Abdul Wali Khan

moved the Supreme Court, Mr Bhutto also filed a reference in the Supreme Court, who decided that activities of

NAP and its leaders were prejudicial to the sovereignty or integrity of Pakistan, in the case entitled Islamic

Republic of Pakistan v Abdul Wali Khan (PLD 1976 SC 57). NAP changed its name to Awami National Party

(ANP) and is still playing its role in the national politics and had ruled the province of KP. 71See for example: Ministry of Defence Notification No. 3/75 dated 3rd day of January 1975 available in Manual

of Pakistan Military Law (Volume I), (Rawalpindi: Government of Pakistan, Ministry of Defence, 1987), p. 833.

12

unconditional submission and obedience in its ranks and files, absolute authority with no

difference of opinion with Mr Altaf Hussein, intolerance and elimination of opponents, 72

establishment of torture cells, no-go areas and challenge to the writ of the government,

national security and sovereignty, with proven support of anti-Pakistan forces, more

specifically Indian intelligence agency RAW.73

When the political means to bring MQM on table and restore peace in Karachi failed,

the government had to launch operation with the assistance of Armed Forces and Law

Enforcement Agencies (LEAs) in 1991-1992. Anti-state and terrorist activities of MQM were

at the highest flow when General Asif Nawaz was the Chief of Army Staff, when even the

Armed Forces were not allowed to act in aid of civil power in Karachi.74 Kidnapping and

torture of military personnel enraged the Armed Forces and the government.75

Simultaneously, the government resorted to legal measures to check and punish illegal,

criminal, anti-state, anti-national and terrorist activities of MQM and other like-minded; and

enacted Surrender of Illegal Arms Act 1991,76 Terrorist Affected Areas (Special Courts) Act

72Mr Altaf Hussain himself is accused of abetting murder of Dr. Imran Farooq, who was his party member and

had challenged his authority. In view of Altaf Hussain’s repeated speeches against Ranger’s operation in

Karachi and repenting on past links with RAW by some members of MQM, a debate was initiated to burry the past and give MQM to reconcile its past, with minus Altaf Hussain formula. The move received a severe blow

when the enraged Mr Altaf Hussain reprimanded MQM leaders for failing to defend him for allegations of his

criticism against the Rangers and links with RAW. He responded the idea by forcing MQM legislators to resign

from the Parliament and Provincial Assemblies. For details see “MQM lawmakers tender resignation”, August

12, 2015, available at www.dawn.com/news/1200027/ and “Minus Altaf formula not acceptable” July 8, 2013,

available at www.dawn.com/news/102353/, all accessed on August 8, 2016. But as the misfortune would have

it, despite absolute control, Mr. Altaf alongwith some of his comrades was sacked by his own deputies after his

anti-Pakistan tirade on 22 August 2016, so as to save ban on the party. See Azfar-ulAshfaq, “Dr Sattar-led

MQM sacks four London-based leaders”, DAWN Islamabad, September 21, 2016, p. 1 73For alleged links of MQM with RAW, see “MQMs alleged links with RAW: report sent to Interior Ministry”,

The News, June 8, 2016; “MQM had links with India’s RAW agency, Saulat Mirza tells JIT”, April 30, 2015,

available at https://www.geo-tv/latest/98604-mqm-had-links-with-india’s-raw-agency-saulat-mirza-teels-jit,

accessed on August 8, 2016. 74Criminal activities of MQM and its militants in Karachi have also been discussed in Suo Moto case No. 3 of

2001 and Watan Party/Suo Moto case No. 16 of 2011 (PLD 2001 SC 1041 and PLD 2011 SC 997 respectively). 75 It may be recalled that Major Kaleemuddin was kidnapped on 20 June 1991 and tortured by MQM, who had

allegedly hatched a conspiracy to convert Karachi into “Jinnahpur” state, in connivance with Indian RAW. Nawaz Sharif launched operation clean-up in Karachi which was continued by Mrs Benazir Bhutto as well until

August 1994. Altaf Hussain was also one of the accused in Major Kaleem case and awarded 27 years rigorous

imprisonment in absentia. However, subsequently his sentence and convictions along with 18 MQM members

stood set aside, when the provincial government, on 13 August 2007, withdrew its appeal in Major Kaleem

case. For details see, “Major’s kidnapping, Jinnahpur 1992, 1994 anti-MQM operations”, available at

https://www.thenews.com.pk/print/28991/-majors-kidnaping-jinnahpur-1992-1994-anti-mqm-operations,

accessed on August 8, 2016. 76PLD 1992 Central Statutes 48.

http://www.dawn.com/news/1200027/http://www.dawn.com/news/102353/https://www.geo-tv/latest/98604-mqm-had-links-with-india's-raw-agency-saulat-mirza-teels-jithttps://www.thenews.com.pk/print/28991/-majors-kidnaping-jinnahpur-1992-1994-anti-mqm-operations

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1992,77 Special Courts for Speedy Trial Act 1992.78 This effort of the government with the

assistance of the Armed Forces helped curtail criminal and terrorist activities of MQM,

remove no-go areas, shatter confidence of the MQM leadership and workers, who either went

underground or exiled themselves. However, death of General Asif Nawaz and ouster of Mr

Nawaz Sharif government in April 1993 gave a big blow to the collective efforts of the civil-

military leadership to check growing lawlessness, terrorism and military in Karachi and other

parts of the country. Politically motivated and MQM-influenced police and judiciary in

Karachi were definitely some of the factors to contribute in high rate of criminality, terrorism

and militancy. MQM case is not exception to the notion that when the suppressed and the

depressed gain power, they tend to retaliate with multiplying force. Their actions and conduct

generally are irrational and motivated by retribution, reprisal and absolute authority with no

scope for pardon or compromise except unconditional submission to their will by the

opponents and opposite forces. This phenomenon of realism79 continues until those

suppressed by the (suppressed converted into) oppressors stand up against the later and

eliminate or treat them the way they were treated by the others after gaining power.

Accordingly, MQM was joined by other ethnic, linguistic and religious groups in

contributing law and order situation in Karachi; and challenge authority of MQM. The law

and order situation in Karachi started deteriorating to the extent that the economy of Pakistan

started recession rather than a boom. Efforts of the government to eradicate menace of bhatta

collection, sectarian violence, target killings and strikes with the existing laws did not bear

fruit. The government in its last effort promulgated ATA but its execution through the same

police and judiciary scared of personal and job security, influenced by political factor, with

lack of capacity and motivation, remained a challenge for the government. Depressed by the

ground realities and deteriorated law and order in the country, especially in Karachi and in

the wake of Mehram Ali case, the government decided to establish military courts in Karachi

through Armed Forces (Acting in Aid of Civil Power) Ordinance 1998.80 The military courts

77PLD 1992 Central Statutes 235. 78PLD 1992 Central Statutes 229. 79To understand the theories of realism, see for example: Thomas Hobbes, Leviathan, Chap XIII, pp. 56-57; and

“A Realist Theory of International Politics” in Hans J. Morganthau, Politics Among Nations (New York: Alfred

A knopf, 1973), pp. 3-15. 80PLD 1999 Central Statutes 156; The Ordinance was further amended by “Pakistan Armed Forces (Acting in

Aid of Civil Power) (Amendment) Ordinance 1998” (PLD 1999 Central Statute 160).

14

tried heinous crimes and created deterrence by awarding deterrent sentences within a couple

of months, until the Supreme Court declared the said Ordinance ultra vires to the constitution

and suggested amendments in the 1997 ATA as well as ordered transfer of all pending cases

to the anti-terrorism courts (ATCs).81 The government kept on amending and improving the

ATA which became the basic and most authentic anti-terrorism law in the country, except the

establishment of Qazi courts in Kohistan district of KP province established through the

Shari Niazm-i-Adl Ordinance 199982 on the demands for enforcement of Shariah.

The law was delivering with leaps and bounds until the WOT ensued in the wake of

9/11 attack on the twin towers in New York. KP was the most affected by the American

WOT initiated in Afghanistan and being fought in Pakistan. Since the people of KP and its

adjoining tribal areas of FATA and PATA were considered as the sanctuaries and supporters

or sympathizers of Taliban and their Al-Qaeda allies, they sought refuge in these areas; hence

these areas and the people inhabited therein became the subject of American hunt and

pursuits of WOT. The questions of legality of US pursuits of the alleged accused or abettors

of 9/11 attacks and rationale for her drone strikes in these areas aside, the US WOT

challenged sovereignty and national security of Pakistan and contributed to the deterioration

of law and order in the whole of country, as the alleged accused scattered in the settled areas

of Pakistan, initially in search of safe heavens and subsequently for regrouping and re-

organization. Their criminal acts were converted into militancy, terrorism, and anti-state

activities in the settled areas against the innocent civilians, Armed Forces and LEAs with the

momentum in the American drone strikes and implied and direct support of the Armed

Forces and the government of Pakistan to the Americans.83 As a consequence thereto, when

all efforts to restore peace and writ of the government failed, the Armed Forces were called

in to conduct operations against the militants, miscreants and terrorists operating in any name

or manifestation or garb of non-state actors funded by the friends and foes.84 Since these

81Notification issued by the Ministry of Interior on 20 November 1998 whereby Armed Forces were called under Article 245 of the Constitution in Karachi. For details of the emergency order, resolution of the

Parliament and other relevant notifications, see “Sh Liaquat Hussain case” (PLD 1999 SC 504, pp. 681-683). 82Ordinance 1 of 16 January 1999 (PLD 1999 N.W.F.P Statutes 20). PATA falls under the administrative

control of the Chief Minister of Khyber Pakhtunkhwa in term of Articles 246(b)(i) and 247(1)(2)(3)(4) of the

Constitution. 83See generally Niaz A. Shah and Amnesty International Report op. cit. 84"Revisiting Counter-terrorism Strategies in Pakistan: Opportunities and Pitfalls", Asia Report No. 271, July

22, 2015, International Crisis Group Brussels, available at http://www.crisisgroup.org/en/regions/asia/south-

http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspx

15

military campaigns were aimed at neutralizing activities of the said anti-state elements and

incapacitating the said violent non-state actors, the government did not conceive to try them

through the special or anti-terrorism courts, especially those apprehended and detained in the

FATA and PATA during military operations. On the other hand, those tried before the anti-

terrorism courts were either awarded lenient punishments or acquitted of the charges for want

of sufficient incriminating and legally admissible evidence.85

This state of affairs aggravated terrorism, compromised life and liberty as well as

protection of property; while the law and the enforcers of law remained helpless. It also

adversely affected the national security and sovereignty of Pakistan, as it was regarded a

failed and insecure country for any international and multilateral social, cultural, economic

and educational activity. Suicidal and bomb attacks on places of worship, public places,

educational institutions, kidnapping and target killings of the philanthropists, businessmen,

intellectuals, moderates and even members of the Armed Forces, LEAs and opponents of the

terrorists and miscreants became order of the day.86 In such circumstances, the efforts to

bring the culprits to justice through the existing investigating and prosecuting agencies and

the judicial officers did not succeed to give a clear message to the criminals to stop;

otherwise they would be eliminated through the force of law.87 Simultaneously, voices were

raised for alleged violations of human rights and enforced disappearances. In order to address

the issues, the government, besides amendments in the existing laws, for example ATA,

promulgated Shariah Nizam-i-Adl Regulation 2009 for PATA, Actions (in Aid of Civil

Power) Regulations 2011 for PATA and FATA,88 Investigation for Fair Trial Act 2013,89

Protection of Pakistan Act 201490 and finally 21st Constitutional Amendment and Pakistan

Army (Amendment) Act 2015.91 It is a general perception that the said laws were

asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspx; Khyber

Pakhtunkhwa Public Service Coordinators, “Impact of terrorism on Pakistan", available at

http://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan, accessed on April 24, 2016. 85An e xclusive discussion with Brigadier Muhammad Amin, former Judge Advocate General, Pakistan Army

and G. M. Chaudhry, Advocate Supreme Court of Pakistan, at Islamabad on January 27, 2016. 86 Detail account of these events has been given in chapter 3. 87An exclusive interview with Brigadier Muhammad Amin, op. cit. 88President Asif Ali Zardari promulgated Regulation F. No. 11(5) P/L/2011 for PATA and Regulation F. No.

11(6) P/L/2011 for FATA, published in Gazette of Pakistan Extraordinary, 566 and 567 of 27 June 2011 at

pages 241-257 and 259-275. The FATA Regulation is also available at PLD 2012 Federal Statutes 46. 89PLD 2013 (Sup) Federal Statutes 45. 90PLD 2014 [Sup (Part II)] Federal Statutes 177. 91District Bar Association Rawalpindi v Federation of Pakistan (PLD 2015 SC 401).

http://www.crisisgroup.org/en/regions/asia/south-asia/pakistan/271-revisiting-counter-terrorism-strategies-in-pakistan-opportunities-and-pitfalls.aspxhttp://www.kppsc.com.pk/pages/?Impact_of_terrorism_on_Pakistan

16

promulgated to validate the detentions of persons who had been apprehended and interned

without being tried since 2008 and condone any act or omission connected with their

continued detention and delay in trial.92 The prosecution regime thus in fact has been linked

with the Pakistan Army (Amendment) Act 2015. It may be recalled that this Act is not the

only effort to bring the culprits within the pale of courts martial or military courts.93 There

had been occasions when military and the political regimes had assigned and recognized the

role of courts martial or military courts as an alternative mechanism for the administration of

criminal justice in Pakistan.94 However, this role had not only been temporary but also

subject to both criticism and appreciation. Though efforts and sacrifices of the armed Forces

in the fight against terrorism are appreciable and commendable for the time being yet the

pros and cons of the present role assigned to the Army for maintenance of peace and

administration of criminal justice would be best calculated after the termination of the

assignment.

Statement of the Problem

Since the launch of WOT, Pakistan remained at the lowest ebb of its political,

economic and socio-religious debacles, and judicial fiascos. Pakistan had to experience

challenges to its sovereignty, security and criminal justice system. It had also confronted the