Pakistan: Information on state efforts to prosecute terrorist groups, including through special courts; activities to combat and prosecute Lashkar-e-Jhangvi (LeJ) (2015-December 2016)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Overview: Prosecution of Terrorist Groups

According to the US Department of State's Country Reports on Terrorism 2015, Pakistan has various laws regarding the combat and prosecution of terrorism, including the Anti-Terrorism Act (ATA) of 1997, and the Protection of Pakistan Act (PPA) [POPA] of 2014 (US 2 June 2016, 254). In a report entitled "Terrorism Prosecution in Pakistan," Syed Manzar Abbas Zaidi, a researcher who has published books and several papers on terrorism and extremism in Pakistan, states that in Pakistan, terrorism cases are tried in "special-jurisdiction courts" called Anti-Terrorism Courts (ATCs). ATCs "operate in parallel to the broader civil and criminal court system" (Abbas Zaidi Apr. 2016, 6). The same source indicates that terrorism cases are also tried in special courts, created under the PPA, and in military courts that were formed after a constitutional amendment in January 2015 (ibid.). Sources also report that in response to an attack on a school in Peshawar [1], Pakistan lifted the moratorium on the death penalty for terror cases in December 2014 (AFP 7 Jan. 2015; AI 16 Jan. 2015).

2. The Anti-Terrorism Act and ATCs

Abbas Zaidi indicates that an amendment to the ATA in 1999 broadened the definition of terrorism, defining the act as an offense that "creates terror among the public" and making this "the sole criteria for an offense to be tried under the ATA" (Apr. 2016, 7-8). Amnesty International (AI) similarly states that the ATA's definition of terrorism "is so vague that almost all crimes can fall under this definition" (AI 16 Jan. 2015). According to Abbas Zaidi, "[i]t was originally envisaged that an ATC trial would take less than seven working days, but with numerous offenses being tried in the ATCs, the cases can now take months or even years to run their full course;" some ATCs in Karachi having a backlog of more than three hundred cases, although other ATCs in the rest of the country have far fewer cases pending (Apr. 2016, 9). Similarly, Al Jazeera reports that the ATCs are "clogged with cases not related to terrorism, such as murder, drug trafficking, and even kidnapping for ransom" (Al Jazeera 11 Jan. 2015). The US Country Reports on Terrorism 2015 similarly states that "the judiciary moved slowly in processing terrorism and other criminal cases, likely due in part to the overly broad definition of terrorism offenses listed in the ATA" (US 2 June 2016, 254). According to Abbas Zaidi, as of January 2016, there were 54 ATC courts in Pakistan (Apr. 2016, 6). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to Al Jazeera, in January 2015 there were about 17,000 cases under trial in the ATCs; the same source cites the Supreme Court as indicating that as many as 85 percent of these cases were not related to terrorism (11 Jan. 2015). The US Country Reports on Terrorism further states that, in some provinces, ATCs have introduced reforms to reduce backlogs, including transferring "'non-true' terrorism cases" to the regular courts (US 2 June 2016, 254). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Abbas Zaidi states that "[t]he processes to produce evidence in [cases of terrorist attacks] are slow and flawed, resulting in a high dismissal rate when the cases are finally brought to court," adding that the "majority of 'hardcore terrorist' cases are acquitted and rarely reach the higher courts" (Abbas Zaidi Apr. 2016, 5). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. According to Abbas Zaidi "the ATA has failed to secure a reasonable conviction rate for terrorists, who continue to slip through the cracks" (ibid., 7). A report written by Tariq Parvez, the former national coordinator of the National Counter Terrorism Authority in Pakistan, and Mehwish Rani, a psychologist who researches counterterrorism, cites the prosecutor general for Punjab as stating that during 2014, ATCs in Punjab heard 785 cases of terrorism which resulted in 196 convictions, representing an acquittal rate of about 75 percent (Parvez and Rani Aug. 2015, 2).

According to Abbas Zaidi, "ATC trials are commonly delayed by frequent adjournments, notably due to absent defense counsels and witnesses" (Abbas Zaidi Apr. 2016, 9). Sources indicate that law enforcement officials and employees of the judicial system face threats when investigating terrorism-related cases (ibid., 12; US 2 June 2016, 254). According to Abbas Zaidi, some of these officers and workers have been targeted and/or killed (ibid.). He also notes that witnesses often do not testify out of fear, and that "unprotected witnesses from the public are most vulnerable to reprisals" as there is "no effective witness protection program in Pakistan today, and no anonymity is afforded to witnesses, despite there being special provisions" in the ATA (ibid.). Parvez and Rani similarly state that the lack of protection for participants and practitioners in the criminal justice system has been highlighted as a "major reason for the large-scale acquittals of terrorists;" provisions in the ATA that require the protection for witnesses, police investigators, prosecutors and judges have "gone totally unimplemented" (Aug. 2015, 6). According to Abbas Zaidi, "[s]ometimes, the courts dismiss seemingly obvious cases of conviction, which raises the suspicion of threats being made behind the scenes" (Apr. 2016, 12).

3. Protection of Pakistan Act

According to a report by Pakistani newspaper Daily Pakistan, four special courts to try terrorism cases were created under the PPA in Quetta, Lahore, Karachi and Peshawar (Daily Pakistan 14 July 2016). Abbas Zaidi indicates that the PPA served to create a parallel Act to the ATA, and that, generally, prosecutors and judges work under both laws as a result of a lack of resources to staff the courts under the PPA, which "actually triples the workloads in some cases; an ATC judge may also serve as a [PPA] judge as well as a magistrate designated under [PPA] to issue preventive detention orders for suspects" (Apr. 2016, 6). The US Country Reports on Terrorism 2015 states that the PPA's provisions "have been only sporadically implemented in 2015" (US 2 June 2016, 254). Similarly, Abbas Zaidi notes that "while some [PPA] courts have been formed [up to April 2016], no cases have actually been tried under the law" (Apr. 2016, 6). A press release from the International Commission of Jurists (ICJ), a commission of "60 eminent judges and lawyers from all regions of the world" focused on the promotion of human rights and the rule of law (ICJ n.d.), cites the ICJ Asia Director as stating that "in these two years, not one suspect has been convicted under [PPA]" (ibid. 30 June 2016).

The US Country Reports on Terrorism 2015 further indicates that human rights advocates and legal experts have criticized the PPA for "granting broad immunity to security forces in the use of lethal force, expanding the power of arrest without a warrant, and eliminating the presumption of innocence" (US 2 June 2016, 254). ICJ states that the special courts are allowed to hold secret hearings and "do not meet international standards for fair and public criminal proceedings before a competent, independent and impartial tribunal" (30 June 2016). Similarly, Human Rights Watch indicates that the PPA's provisions "open the door for the violation of fundamental rights to freedom of speech, privacy, peaceful assembly and a fair trial" (Human Rights Watch 21 July 2014). According to the same source, the PPA "removes the burden of proof of criminal conduct from government prosecutors and requires criminal suspects to prove their innocence" (ibid.). ICJ also cites its Asia Director as stating that "we can conclude that the [PPA] doesn't really protect people in Pakistan from terrorism and other violent acts, but instead it undermines their basic human rights protections" (30 June 2016).

According to sources, the PPA was due to expire in July 2016 (US 2 June 2016, 254; Daily Pakistan 14 July 2016; The News International 14 July 2016). However, sources indicate that the Pakistani Government was contemplating extending it by two years (ibid.; Daily Pakistan 14 July 2016). Further information about the expiry and extension of the PPA could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. Military Courts

According to the US Country Reports on Terrorism 2015, a January 2015 amendment to the Pakistani Constitution allowed military courts to try civilians for "'offenses relating to terrorism, waging of war or insurrection against Pakistan, and prevention of acts threatening the security of Pakistan by any terrorist group using the name of religion or a sect and members of such armed groups, wings, and militia'" (US 2 June 2016, 255). The Amendment reads:

1. Short Title and Commencement

…

(3) The provisions of this Act shall remain in force for a period of two years from the date of its commencement and shall cease to form part of the Constitution and shall stand repealed on the expiration of the said period. (Pakistan 2015)

Sources indicate that the military courts were set up as a response to the Peshawar school attack in 2014 (US 2 June 2016, 255; The Wall Street Journal 20 Jan. 2015). The Wall Street Journal reports that nine military courts had been set up by 20 January 2015 (ibid.). According to Abbas Zaidi, military courts try terrorism cases referred to them by provincial governments, and "it seems [that these courts] primarily take on the most challenging cases - ones that the provinces have been unable to prosecute because of time delays in the ATCs" (Abbas Zaidi Apr. 2016, 6-7). The same source adds that the military courts "seem capable of quickly handling the problematic cases" (ibid., 7).

However, Abbas Zaidi also states that "little comment can be made on how [military courts] prosecute terrorist cases," as they are held "behind closed doors;" the same source characterizes such cases as "problematic in terms of access to a fair trial" (Apr. 2016, 6). A 2016 ICJ report on the Pakistani military courts for terrorism-related cases describes the system as placing Pakistan "in clear violation of its legal obligations and political commitments to respect the right to life, the right to a fair trial, and the independence and impartiality of the judiciary" (June 2016, 3). Deutsche Welle (DW), a German news broadcaster, cites Kamaran Murtaza, the President of the Supreme Court Bar Association in Pakistan, as stating that the Constitution enshrines the right of all citizens to a fair trial "and this is not possible in military courts" (DW 7 Aug. 2015). The President of the Supreme Court Bar Association in Pakistan is also quoted as saying, "[f]orget about the fair trial, nobody even knows the names of the convicts the military courts have thus far sentenced" (ibid.).

According to the ICJ report, the government has set up 11 military courts since January 2015 to hear terrorism-related cases (ICJ June 2016, 4). These courts have conducted 105 trials and convicted "at least" 81 people, including sentencing 77 people to death and 4 more to life in prison (ibid.). The ICJ report further indicates that 12 people, out of those given the death penalty, have been hanged "after trials that [were] grossly unfair" as the government did not make publicly available "the time and place of their trials; the specific charges and evidence against the convicts; as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based" (ibid., 3-4). Similarly, a joint letter by AI and Human Rights Watch published in December 2015 indicates that they were "alarmed at death sentences imposed by military courts," and provided the example of the execution of four men at Kohat jail on 2 December 2015 who allegedly participated in the Peshawar attack, where the exact charges have not been made public (AI and Human Rights Watch 17 Dec. 2015).

5. Lashkar-e-Jhangvi

Sources describe Lashkar-e-Jhangvi (LeJ) as a "banned Sunni militant group" (BBC 29 July 2015) or a "Sunni … terrorist outfit" (SATP n.d.a). The website of Public Safety Canada states that the group has a reputation for "being one of the most violent Islamist extremist organizations in Pakistan," and that it has been responsible for killing "hundreds of Shiites since its formation in 1996" (Canada 2 Dec. 2015). The BBC similarly reports that the group was "behind some of the most violent attacks on Shia Muslims in recent years" (29 July 2015). Sources indicate that the group has links to Al-Qaeda ((BBC. 11 Jan. 2013; Canada 2 Dec. 2015) and the Taliban (SATP n.d.a; BBC 11 Jan 2013). Sources indicate that since 2003, LeJ is on the lists of terrorist organizations produced by the governments of Canada (Canada 2 Dec. 2015) and the United States (US n.d.).

5.1 Efforts to Combat and Prosecute LeJ

In a telephone interview with the Research Directorate, an independent researcher and journalist, whose work covers militancy and security issues in Pakistan and has been published in various international publications, provided the information in the following paragraph:

The Pakistani authorities have undertaken strict actions against LeJ, particularly in Punjab. However, the authorities are not arresting LeJ members, they are killing them, in an extrajudicial way. If someone is threatened by LeJ, asking for protection from the police is not effective because the Shia community is too large, and the police cannot provide security to everyone. Courts are not effective either, because in many cases witnesses do not come to testify out of fear; courts therefore release suspects due to a lack of evidence. This applies to all courts, including the ATCs, the high courts and other courts that may deal with terrorism cases. There are cases where LeJ members were tried and many have been given death sentences. The courts are more effective in Punjab, where there is the courage to confront LeJ. Court proceedings can take years, since they are very slow in Pakistan (Independent Researcher 13 Dec. 2016). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5.2 Incidents

Media and government sources have reported on the following cases of Pakistani authorities responding to LeJ:

• On 7 January 2015, Pakistani authorities hanged two members of LeJ in Multan, who had been sentenced to death by an ATC in 2002, one for killing a senior police official, and the other for killing three people (AFP 7 Jan. 2015).
• On 20 January 2015, The Wall Street Journal reported that, "[i]n recent weeks Pakistani courts granted bail to high profile militants," including Malik Ishaq, the head of LeJ (The Wall Street Journal 20 Jan. 2015).
• Government officials reportedly indicated that they had arrested suspects affiliated with LeJ who were connected to a suicide bomb attack on a Shia mosque in the Shirkarpur on 30 January 2015 (US 2 June 2016, 253).
• In April 2015, law enforcement agencies arrested Tahir Farooqi, the alleged maker of suicide jackets for LeJ, in Lahore (The Nation 26 Apr. 2015).
• In July 2015, the leader of LeJ, Malik Ishaq, was killed in a police shootout along with 13 others (AFP 13 Dec. 2015; US 13 Apr. 2016, 20; BBC 29 July 2015), including his two sons and 11 militants (ibid.; US 13 Apr. 2016, 20). According to the independent researcher and journalist, Ishaq had been arrested a number of times before, but was released because people were "too afraid to come forward and testify" (Independent Researcher and Journalist 13 Dec. 2016). BBC similarly indicates that Ishaq "was wanted in hundreds of sectarian killings but government prosecutors always failed to bring sufficient evidence to get him convicted in a court" (BBC 29 July 2016). Ishaq had been detained a week before his death and was reportedly killed when militants attempted to free him (ibid.). The same source adds that "the circumstances of [his] killing are not clear, and many believe the gunfight may have been a 'fake encounter', staged to kill a suspect who could be freed if taken to court," similar to the killing in 2002 of Riaz Basra, previous LeJ leader (ibid.). Similarly, sources state that the killing was seen by analysts as an extrajudicial killing by the state (AFP 13 Dec. 2015) or that at least some of these killings were orchestrated by security forces (US 13 Apr. 2016, 20).
• In November 2015, the deputy to the leader of LeJ was killed in a shootout with police, similar to the one in which Ishaq was killed (AFP 13 Dec. 2015).
• In February 2016, the police indicated that they killed 12 people who were affiliated with Al-Qaeda in the Indian Subcontinent as well as LeJ in two "encounters" in the Pipri and Gadap areas in Karachi (Dawn 22 Feb. 2016; The News International 23 Feb. 2016). Pakistani newspaper The News International reports that on the same day, in Dera Ghazi Khan, police arrested "a key LeJ operative" named Asif Chotu who was wanted for a bomb attack on a justice in 2013 "and other heinous crimes" (ibid.).
• In July 2016, the Sindh High Court maintained the acquittal of Muhammad Ajmal, a LeJ leader, who was accused of the murder of the owner of the Pak-Iranian Tea Company in 2002 (PTI 9 July 2016; The Express Tribune 8 July 2016). Pakistani newspaper The Express Tribune indicates that he had been acquitted earlier by "Karachi's anti-terrorism court-V" (ibid.).
• In November 2016, the Counter Terrorism Department (CTD) of the police arrested two alleged LeJ members for murder (Dawn 20 Nov. 2016; The News International 24 Nov. 2016). The News International reports that during the interrogation, the accused admitted their involvement in "20 target killings over the past year" (ibid.).

Information about LeJ members being prosecuted in military courts could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] On 16 December 2014, a terrorist attack against the Army Public School in Peshawar resulted in the deaths of more than 140 students and staff members (The Guardian 16 Dec. 2014).

References

Abbas Zaidi, Syed Manzar. April 2016. "Terrorism Prosecution in Pakistan." United States Institute of Peace (USIP). Peaceworks. No. 113. [Accessed 8 Dec. 2016]

Agence France-Presse (AFP). 13 December 2015. Lehaz Ali. "Pakistan: At Least 23 Killed, Dozens Wounded in Pakistan Market Bombing." [Accessed 13 Dec. 2016]

Agence France-Presse (AFP). 7 January 2015. "Pakistan Hangs Two More Men Convicted of Terror Offences." [Accessed 29 Nov. 2016]

Al Jazeera. 11 January 2015. Asad Hashim. "Army Courts to Try Pakistan Terror Suspects." [Accessed 28 Nov. 2016]

Amnesty International (AI). 16 January 2015. "Pakistan: End Wave of Executions in Wake of Peshawar Attack." [Accessed 29 Nov. 2016]

Amnesty International (AI) and Human Rights Watch. 17 December 2015. "Open Letter to the Prime Minister of Pakistan: Reimpose the Moratorium on the Death Penalty." (ASA 33/3023/2015). [Accessed 29 Nov. 2016]

British Broadcasting Corporation (BBC). 29 July 2015. "Malik Ishaq: Pakistan Sunni Militant Chief Killed by Police." [Accessed 29 Nov. 2016]

British Broadcasting Corporation (BBC). 11 January 2013. Asif Farooqi. "Profile: Lashkar-e-Jhangvi." [Accessed 29 Nov. 2016]

Canada. 2 December 2015. Public Safety Canada. "Currently Listed Entities." [Accessed 8 Dec. 2016]

Daily Pakistan. 14 July 2016. Ali Zain. "Government Mulls Extension as Protection of Pakistan Act Expires." [Accessed 8 Dec. 2016]

Dawn. 20 November 2016. "Two 'Militants' Remanded in Three More Cases." (Factiva)

Dawn. 22 February 2016. Imtiaz Ali. "Police Kill 12 'Militants' During Alleged Encounters in Karachi." [Accessed 9 Dec. 2016]

Deutsche Welle (DW). 7 August 2015. Shamil Shams. "Pakistan's Military Courts - A Solution or A Problem?" [Accessed 28 Nov. 2016]

The Express Tribune. 8 July 2016. Naeem Sahoutara. "SHC Maintains Acquittal of Chief of Lashkar-e-Jhangvi." [Accessed 13 Dec. 2016]

The Guardian. 16 December 2015. Jon Boone. "Peshawar School Attack: One Year on 'the Country Is Changed Completely'." [Accessed 12 Dec. 2016]

Human Rights Watch. 14 July 2014. Phelim Kine. "Pakistan's Dangerous Anti-terrorism Law." [Accessed 29 Nov. 2016]

Independent Researcher and Journalist. 13 December 2016. Telephone interview.

International Commission of Jurists (ICJ). 30 June 2016. "Pakistan: ICJ Urges Government Not to Extend Oppressive Couter-terrorism Law." [Accessed 8 Dec. 2016]

International Commission of Jurists (ICJ). June 2016. Military Injustice in Pakistan: A Briefing Paper. [Accessed 8 Dec. 2016]

International Commission of Jurists (ICJ). N.d. "About." [Accessed 8 Dec. 2016]

The Nation. 26 April 2015. "Tahir Farooqi Suicide Jacket Expert of Lashkar-e-Jhangvi Arrested." [Accessed 9 Dec. 2016]

The News International. 24 November 2016. "Court Extends Remand of Two 'LeJ Terrorists' Till Dec 5." (Factiva).

The News International. 14 July 2016. Azas Syed. "Protection of Pakistan Act May Be Extended for Two Years." [Accessed 8 Dec. 2016]

The News International. 23 February 2016. Salis Bin Perwaiz. "12 al-Qaeda, LeJ Terrorists Killed in Karachi Encounters." [Accessed 9 Dec. 2016]

Pakistan. 2015. Constitution (Twenty-first Amendment) Act, 2015. [Accessed 19 Dec. 2016]

Parvez, Tariq and Mehwish Rani. August 2015. United States Institute of Peace (USIP). "An Appraisal of Pakistan's Anti-Terrorism Act." Special Report. No. 377. [Accessed 6 Dec. 2016]

Press Trust of India (PTI). 9 July 2016. "Pak Court Maintains Acquittal of Lashkar-e-Jhangvi Chief." [Accessed 28 Nov. 2016]

South Asia Terrorism Portal (SATP). N.d.a. "Lashkar-e-Jhangvi." [Accessed 6 Dec. 2016]

South Asia Terrorism Portal (SATP). N.d.b. "A Profile." [Accessed 8 Dec. 2016]

United States (US). 2 June 2016. Department of State. "Pakistan." Country Reports on Terrorism 2015. [Accessed 28 Nov. 2016]

United States (US). 13 April 2016. Department of State. "Pakistan." Country Reports on Human Rights Practices for 2015. [Accessed 28 Nov. 2016]

United States (US). N.d. Department of State. " Foreign Terrorist Organizations." [Accessed 8 December 2016]

The Wall Street Journal. 20 January 2015. Syed Shoaib Hasan. "Prosecutors in Pakistan Face Routine Threats in Terror Cases." [Accessed 29 Nov. 2016]

Additional Sources Consulted

Oral sources, including: Asian Human Rights Commission; Independent Researcher, Islamist groups in Pakistan; Pakistan – Ministry of Law, Justice and Human Rights; Researcher, Jamestown Foundation; Researcher, Pak Institute for Peace Studies.

Internet sites, including: Daily Times; Ecoi.net; Factiva; Fédération internationale des ligues des droits de l'homme; Freedom House; Human Rights Commission of Pakistan; IRIN; Pak Institute for Peace Studies; Pakistan – Ministry of Law, Justice and Human Rights; Stanford University – Mapping Militant Organizations; UN – Refworld, ReliefWeb; University of Maryland – National Consortium for the Study of Terrorism and Responses to Terrorism.