Scapegoating ourselves

Legal eye

The writer is a lawyer based in Islamabad.

If one needed an illustration on how to make a mockery of a country, its laws and its practice of statecraft, the government provided it to us by placing Cyril Almeida on the ECL and defending the indefensible. The press is unanimous in its condemnation of how the state chose to harass Cyril and scapegoat Dawn. The reason is simple. Cyril was doing his job. He broke no laws. As a columnist, he is a shining star and one of our best. And he works for a paper, which, led by the able and unfeigned Zafar Abbas, does credible journalism.

If the story was false, the government could deny it, which it did and the denials were prominently published. Cyril and Dawn, however, stood by the story. If the government believed that the story was disparaging, whoever was offended could file a defamation suit against the author and the publisher. If our Official Secrets Act (meant to obviate espionage) had been violated (though unlikely that such a case can be made out) and the story was true but illegally leaked, whoever leaked it should have been apprehended not the messenger.

The decision to place Cyril on the ECL was a plain case of abuse of power. The Exit from Pakistan (Control) Ordinance gives the state the power to prohibit someone from proceeding abroad. This power is regulated by the Exit from Pakistan (Control) Rules, which list the grounds on which someone can be placed on the ECL and prescribes the procedure to be adopted. The courts have clarified that in view of Articles 9 (right to life and liberty), 10A (due process) and 15 (freedom of movement) the power to place someone on the ECL can’t be arbitrarily exercised.

One of the grounds in the Rules for placing someone in the ECL is if he/she is involved in threatening national security. Our interior minister while defending his decision to place Cyril on the ECL argued that the Dawn story furthered the enemy’s narrative. Is it the government’s position that by reporting his story, poor Cyril has threatened our national security? If so, how sorry is the state of this nuclear-armed nation’s security that gets all threatened by a report that reveals almost nothing that is not already common knowledge?

The honour brigade says Dawn breached Article 19, which states that: “every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of… security or defense of Pakistan…” But which law imposing restrictions on freedom of press in the interest of Pakistan’s security has been breached here? Is there a law in Pakistan that declares a writing to be illegal if there is a possibility that an enemy might gloat over it?

Let’s focus on the content of the story for a moment to understand what part of it could have our government, establishment and ‘honour brigade’ all riled up. The story reported that international response to our diplomatic outreach in the context of Kashmir has been lukewarm. And further that the US and India are demanding action against the Haqqanis and JeM, respectively, and that China, while standing by us for now, also seems to be tiring out.

Everyone has a view on whether Pakistan is on the path towards isolation or not. Diplomats in key capitals will tell you off-the-record that getting relevant meetings to discuss Pakistan’s brief on Kashmir is a struggle. This is no state secret. So after repeatedly re-reading the story one gets a sense that the ‘treasonous’ part might be this: “the younger Sharif complained that whenever action has been taken against certain groups by civilian authorities, the security establishment has worked behind the scenes to set the arrested free.”

The other treasonous part could be comments attributed to the PM that can be seen as admission of our past patronage of militant groups ie “policies pursued in the past were state policies and as such they were the collective responsibility of the state”. The story did, however, state the DGI’s formal position that our military doesn’t distinguish between militant groups and that Pakistan ought not take steps that signal abandonment of the Kashmir cause or that we are buckling under Indian pressure.

An alien from Mars trying to understand the outrage around the story in view of our written laws might point to Article 243: “the federal government shall have the control and command of the Armed Forces.” He might consider that while the DG ISI is a serving Lt General he is a direct report of the PM. And he might ask if by admitting its inability or impotence to curb militants in a meeting headed by the PM the government is committing treason, who is being betrayed? Obviously such alien would be unaware of more potent unwritten laws we abide by.

By scapegoating Cyril, the Nawaz Sharif government is trying to rectify its reported infidelity to the unwritten laws that reign supreme and are to be defended with the coercive writ of the state. One unwritten commandment is that matters of national security fall exclusively within the military’s province and civilians are neither competent nor allowed to critique components of our national security policy. An ancillary commandment is that you can’t speak down to the military or embarrass it in public as that hurts the only institution that holds us together.

The underlying problem in the present context is our equivocal policy towards militant groups. If our stated policy is that all proscribed organisations are to be eradicated, why are the JuDs and JeMs alive and well? In a recent article Tariq Khosa, a retired IG, known for his expertise, integrity and candour, wrote that, “based on my four decades of law-enforcement experience I can assert, without fear of contradiction, that no non-state actor can exist without support from visible or invisible state elements and certain external players.”

The question being asked in the backdrop of Indian allegations (that JeM is executing terror attacks on its territory) is similar to the one asked after the OBL operation: is the Pakistani state complicit or incompetent? While in the case of the US having hunted down the Al-Qaeda chief in Abbottabad incompetence was a safer option, any suggestion of incompetence in a contest with archrival India is nothing short of apostasy. So if the state isn’t incompetent (which it certainly isn’t) and its stated policy is elimination of all militants, who will take the bullet?

Assuming it is in Pakistan’s interest to continue to equivocate on Kashmir-focused non-state actors (because it would send the wrong message to Kashmiris or because the time just isn’t right to stir up this Hornet’s nest with the military fighting the really bad militants), shouldn’t civilian agencies take that bullet for the country and admit that while they are trying they are ineffectual and that is why the JeMs and LeTs live on? But what to do if many believe that equivocation on militants is not in our national interest?

Over time we have entrenched some myths about means essential for promoting our national interest, means that are harmful for the very interest we seek to promote. One such myth is that it is in our national interest not to subject national security policies to critical scrutiny. Another is that mortals comprising our national security establishment can do no wrong and thus loyalty to the state means unquestioning allegiance to the subjective judgement of these mortals.

Freedom of speech and freedom of the press are celebrated freedoms not because all speech is good but because the liberty to express dissent saves a state and society from becoming insular. If a national security policy cannot withstand public scrutiny, then instead of labelling scrutiny an act of treason we will better serve our national interest by reconsidering the merit of such policy.

Email: sattar@post.harvard.edu