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Legalising terror

What do the Protection of Pakistan Ordinance, 2013, Protection of Pakistan (Amendment) Ordinance, 2014 and the Anti-terrorism (Amendment) Ordinance, 2013 have in common? ‘Legal’ measures to tackle the terror threat facing the Pakistani state, would be the answer of supporters of these laws. Draconian measures amounting to a subversion of fundamental rights would be the response of critics.

What both these approaches display is proof that the biggest industry in Pakistan is the fantasy industry that constantly produces political and legal positions based on policy myths.

Legal myth: In philosophical terms, what these laws have in common is the presumption that the law is the panacea to the terrorist threat. Not all laws but a law which legalises terror in the form of legalised encounter killings, legalised missing persons, legalised erosion of fundamental rights of accused persons and of people generally and the use of military and paramilitary forces to combat political and ideological violence and also violent or widespread criminality.

Such legal models have at heart a love affair with the military justice of confirmed convictions based on presuming the accused guilty.

Injustice to accused persons, or the wrongly accused, or their families, and the general erosion of fundamental rights, is considered a small price to pay for achieving order and peace.

The constitutional critique of such laws is obvious: a state without fundamental rights is blind. But such critique could be ignored if the legal myth actually worked and legalising terror could actually eliminate terror.

Has the de facto state policy of encounter killings, enforced disappearances, mushrooming special and speedy courts and internment centres holding allegedly 1,500 to 1,600 persons without trial in the tribal areas and KP under the Actions (in Aid of Civil Power) Regulations, 2011, solved, or even substantially reduced, the terror threat to the state?

The answer must be a definitive no. Not only has it not reduced terrorism, it may actually be breeding more terrorism — violence breeds violence, its misuse against innocent persons becomes rampant, the lack of justice for borderline radicals radicalises and converts them and injustice against the radicals provides rationality for their own brutal acts of terror.

The problem doesn’t lie with the law but with the erosion and weakness of the Pakistani state. The basic characteristics of a state have been lost, ie the state has lost its monopoly over the means of violence, its administrative reach in society to know what’s happening and to implement its measures, and its legitimacy and relevance in the eyes of its inhabitants.

Moreover, secular or religious terrorism has political causes, which cannot be solved through legal means. Yes, countries in modern times have solved their terrorism problems through political means and state repression but not through anti-terror laws in a weak state.

Rights myth: We are in the midst of a collapsing criminal justice system with only 32pc of prisoners being convicts, daily bombings and killings, and a rise in vicious and violent criminality against all segments and classes in society. In short, there’s a slow but consistent rise in violent anarchy in society. The human rights elite counters this by perpetuating the rights myth, that if only fundamental rights and the law were enforced, terror would diminish.

Can fundamental rights be ensured and the law implemented in a collapsing state? Or the principle of presuming the accused innocent until proven guilty strictly enforced in a state with a collapsing criminal justice system? In other words, a fundamental rights regime in a weak state is hollow because a constitutional document on paper is difficult to defend in the midst of anarchy.

It may certainly be that anti-terror laws cannot substantially reduce the problem of terrorism but weak anti-terror laws, in a weak state with a collapsing criminal justice system, can lead to a radical increase in terrorism if there’s no deterrence through executive force or judicial convictions. Also, the fact is that weak anti-terror laws are manipulated by people employing terror by obtaining unjustified judicial relief.

Complicated reality: We should be frank in admitting that there are no anti-terror laws which can substantially reduce the problem of terrorism and violent criminality. We should further accept that there can be no anti-terror laws, which don’t erode to some extent the rights of citizens.

Instead of focusing on the misleading dichotomy between rights and order, the public debate should instead focus on the guidelines underlying such anti-terror laws. First, in a country like Pakistan in which the armed forces and intelligence agencies already have substantial de facto power, any further legal transfer of power should be supervised through governmental, legislative and judicial oversight.

Second, in the midst of increasing terror in which only the military and paramilitary forces may have the countering coercive capacity to combat it, such laws should only be formulated after inputs from the military and intelligence elites. No law will work if they are not on board.

Third, different laws and executive methods may be needed to deal with political and religious violence and various other forms of criminality and also different laws for tribal areas. One law for the entire country, and for all forms of extreme violence, is no solution.

Therefore, there may not be a good, or perfect anti-terror law but we should at least avoid making a bad one. The writer is a lawyer.

Faisal Siddiqi, "Legalising terror," Dawn. 2014-02-08.
Keywords: Social sciences , Social issues , Social laws , Target killing , Human rights , Religious issues , Judicial process , Military-Pakistan , Laws-Pakistan , Society-Pakistan , Terrorism , Judiciary , Violence , Pakistan