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“This is not the rule of law; this is a joke.”

Legal mess

Many in Pakistan not surprised men convicted in Malala case were secretly released

By Sanam Maher on June 9, 2015

It had the makings of the perfect firestorm: on Friday, a British newspaper, The Daily Mirror, broke the news that of the 10 men reportedly found guilty by a Pakistani anti-terrorism court of the brutal attack on Malala Yousafzai in 2012, eight had been secretly set free.

The news emerged as the court order from the trial was made public a month after the hearing had concluded, and the Mirror alleged that the men were released as part of a deal, with the greatest efforts made to avoid local or international media picking up on the story.

On April 30, international and Pakistani media extensively covered the news of life sentences handed down to the 10 men, who were swept up in September 2014 by the Pakistani army during the ongoing military offensive Operation Zarb-e-Azb in Pakistan’s restive northern region. On Friday, the world learned that it was only two, not 10, of the alleged attackers who were convicted and imprisoned.

“The eight prisoners were released from jail because officials would have received a message from the courts regarding their acquittal,” DIG Malakand Azad Khan confirmed on Friday. Pakistani authorities have since stated that the eight men remain in custody, only fueling skepticism regarding the veracity of facts emerging in this case. “The eight who were acquitted are still being held in various jails and an internment center,” a police official told the AFP. Per the draconian Actions in Aid of Civil Power Regulation 2011, applicable in Swat, these men can be held indefinitely by the armed forces.

Even as this story brings together some of Pakistan’s best-loved trigger points – Malala (whom many still believe to be a ‘Western agent’), the illegitimacy of secret military courts, alleged covert deals and a doddering justice system – the response to the Mirror’s story was rather muted. Only one English-language newspaper, Dawn, carried the story on its front page. Dawn subsequently ran a blistering editorial against the legitimacy of the trial, while talk shows and news bulletins were dedicated to the imminent announcement of the federal budget and political leaders remained tightlipped. For many, the news did not merit an appearance on their social media feeds. And since the triumphant announcement of the attackers’ arrests last year, the army’s press information wing has remained silent about the case.

“The story really does cover most of the subjects we love to complain about, but you should not be surprised at the quiet response it has received in Pakistan,” said Ali Dayan Hasan, former director of Human Rights Watch in the country. “Reactions to Malala personify the schisms within Pakistani society: to people like myself, she is a lightening rod for all sorts of worthy causes and embodies all that is good and hopeful and gets killed in Pakistan. To others, she is the Western conspiracy to destroy Pakistan’s image and denial about her attack runs deep.”

For Sherinzada, a reporter in Swat who has been following Malala’s story since 2009, the news of the acquittals did not come as a surprise – in fact, he claims local media in Swat knew of the two convictions a few days after the initial, and now incorrect, story of 10 convictions made headlines around the world. “All of the reporters had one source, the public prosecutor,” he explains. “At first he told us that he was inside the court when the verdict was handed down, but he denies this now.” The prosecutor allegedly called several reporters on April 30 and informed them that 10 men had been sentenced to life for the attack on Malala.

“Two days later, I heard that there had only been two convictions and I asked the prosecutor to confirm this,” Sherinzada recalls. “He told me that all the reporters had got the story wrong as there was a lot of disturbance on the phone line when he spoke with them and they misheard him.” Sherinzada says many reporters, including himself, approached their desk editors and informed them of the miscommunication. They were reportedly told to stay quiet. “I was told, ‘The news is over now, there is no point in running a correction’,” he says. Sherinzada agrees with the instructions he was given. “What difference does it make to us if it is 10 men or two convicted? And besides, if we got the story wrong, someone in the judiciary or the government should have issued a correction.” He says the reporters in Swat agreed to band together. “We were confused about what to do. We had all run the same story, then we all decided to hide our mistake and we went silent.” Only one newspaper in Swat ran a correction to the story, on April 31.

Hasan says the failure to correct the record at the time was probably motivated by the government’s desire to deflect attention from the political turmoil and mass protests in the country at the time, and by the desire for “PR for Operation Zarb-e-Azb.” “What this case shows us is that there is a crisis in the Pakistani criminal justice system,” Hasan feels. “It is totally defunct. This cannot be the rationale to allow military courts to function, however, as that gives the military carte blanche to abuse.” For Hasan, the case of Malala’s attackers proves yet again that military courts and the ailing justice system are not credible. As he says, “This is not the rule of law; this is a joke.”

One of Malala’s former English teachers in Swat, Fazal Khaliq, also says he is not surprised or angered by the acquittals. “When the news came in September of the arrests, we did not expect anything to come of them,” he recounts. “And that is exactly what happened: nothing.” Khaliq, who recalls Malala as an excellent speaker during extracurricular debate classes he held at her school, says that faith in the justice system is non-existent. The Pakistani courts, many of which are swamped by a backlog of cases, have a dismal record – in anti-terrorism courts in the federal capital Islamabad, not a single conviction was handed down in 2014.

“So many militants get caught here and many of them confess to what they have done, but punishment has not been meted out to a single terrorist in court,” Khaliq says. “When these men have their day in court, there are no witnesses to testify against them because people are scared. These men go free all the time and whether the case is Malala’s or anyone else’s, it goes to court and is buried there.”

Khaliq, who is also a journalist, admits that this is an “ajeeb” (strange) case that has left many questions unanswered, as people are afraid to speak out about it. “When it was announced that a man named Ataullah Khan was the one who shot Malala, a few of us went to his home to see what we could learn about him,” Khaliq recalls. He says the neighborhood was swarming with security officials. “We asked one man from the neighborhood to point us towards Ataullah’s house, but the minute he walked off, we were surrounded by security officials suspiciously asking us what we were doing there,” Khaliq says. The relentless questions, the secret trial adjudicated by an anti-terrorist court judge but held deep within the Guli Bagh army premises in Swat, and the total lack of information on the trial convinced many that it was not safe to probe what was going on. Even today, Khaliq is left wondering why a court order – usually issued the day the verdict is handed down and made public to journalists via the district police or administration – took a month to surface. “Maybe we’ll find out some day,” he muses.

For Academy Award-winning director Sharmeen Obaid Chinoy, who has been following the story closely, such silence about the acquittals speaks volumes. “It doesn’t bode well that all of this unfolded so quietly,” she feels. “We literally let people get away with murder in this country.”

Chinoy notes that if it is indeed true that the news was miscommunicated by the media and the prosecutor, “it means that the entire system is flawed.” However, human rights lawyer Asad Jamal says that often the system is not flawed, but rather is not used effectively. According to police official Azad Khan, the eight men were acquitted because there was “no solid proof or witnesses.” Jamal argues that such proof can only be brought into court when prosecutors or law enforcement agencies adhere to amendments such as the Investigation for Fair Trial Act of 2013, created particularly for the legal admissibility of digital, electronic or cellular surveillance or records. However, since the act was introduced two years ago, Jamal does not know of a single case wherein an application to allow such evidence in court has been made.

“The prosecutors largely do not know how to present evidence or to make a successful case, and many of the judges are scared or religiously and/or ideologically inclined towards favoring terrorist ideology,” Jamal feels. Thus, he says, “I was not at all surprised when I heard the eight men were acquitted. The other two who were convicted will also probably get let off.”

Sanam Maher is a Karachi-based journalist and tweets @SanamMKhi