Legal eye: State and non-state

Ten years, numerous investigations and a trial later, we are as unaware of the truth surrounding Benazir Bhutto’s assassination as we were the day she was taken. The saddest part is that this has come as no surprise. Had we stumbled upon the truth amid the state putting up a show of trying to bring offenders to justice, it would have been a break from our history and practice. The ATC ruling, considered dispassionately, epitomises the rot that parts of our state have come to represent. As a whole, it is a picture of depravity, complicity, inability and timidity.

There were at least three hypotheses regarding BB’s assassination: One, she was killed on Musharraf’s instructions; two, she was killed by the Musharraf regime by engaging non-state actors; three, non-state actors conceived and executed the assassination plan and the Musharraf regime – while being aware of the threat – was either incapable or unwilling to protect BB. To state the obvious, none of these makes the state look good. It was a state crime, or state and non-state actors being in bed, or non-state actors acting with impunity due to an inept state.

The ATC ruling clarifies nothing. There is no attempt to understand or analyse the larger picture. One gets no sense that the court tried to decrypt the motive of crime or pass a ruling that would unveil the facts surrounding it or announce a sentence that legal heirs of the victim could consider retributive justice or one that would have deterrent effect in general. Is a justice system anything more than a charade if it can’t decipher the truth surrounding a heinous crime, can’t identify or nab culprits and can’t bring peace to legal heirs or society-at-large?

The ATC seems to reject the third hypothesis (proposed and pursued by the state): that non-states/the TTP executed BB. This is the only slightly reasoned part of the ruling. The court decries lack of causal linkages between the accused and the crime and highlights the larger problem with criminal prosecution: the accused kept in illegal confinement, arrest date falsified, confessional statements taken under duress, evidence concocted, involvement of intelligence agencies, SOPs not followed, investigations rife with loose ends leading to prosecution presenting a fabricated story that doesn’t withstand scrutiny.

By separating Musharraf from the trial and ordering that he be tried at a later time, the ATC court doesn’t directly address the theory that Musharraf ordered BB’s assassination. But by convicting DIG Saud Aziz and SSP Khurram Shahzad (under Sections 119 and 201 of PPC, for concealment of design to commit an offence that the police were duty bound to prevent, and for causing disappearance of evidence) the ruling leaves both theories (state ordering BB’s assassination and executing it itself, or having it executed by proxies) open.

The part of the ruling that deals with the role of the police officers is almost devoid of reasoning. It deals with their defences mechanically and while convicting them doesn’t explain in cause-and-effect terms what “design” they tried to conceal. So without the court saying who killed BB and why, we have two police officers convicted (one for ordering that the police escort team assigned to BB attend to the firing incident targeting Nawaz Sharif and for not ordering a post-mortem, and the other for ordering that the crime scene be hosed 100 minutes after the incident).

(In the interest of disclosure, as a young ASP Saud Aziz was our neighbour in Civil Lines. Khurram Shahzad was a classmate in Quaid-e-Azam University and probably the mildest soul in class. And from police officers one has only heard about both being professionals). Notwithstanding the acquaintance, if they were part of or complicit in any ‘design’ to assassinate BB, they must face the wrath of law in its harshest form. But can someone be punished for protecting a design without determining what the design is or who its authors/executioners are?

Holding the police accountable for being negligent is one thing (and about time we do so) and punishing them for deliberately destroying evidence to protect real culprits is another. Have the officers been scapegoated or have they been punished for not revealing the identity of the hidden hands behind BB’s murder? Due to poverty of reasoning, the ruling doesn’t explain. The inability of actors within the justice system to be candid in such cases is evident from the fact that the only plain-speaking part of the ruling is where the judge quotes the findings of the UN Commission of Inquiry.

The UN Commission in its findings noted: “The [BB murder] investigation was severely hampered by intelligence agencies and other government officials, which impeded an unfettered search for the truth. Despite their explanation to the Commission that they do not have a mandate to conduct criminal investigations, intelligence agencies included the ISI were present during key points in the police investigation, including the gathering of evidence at the crime scene and the forensic examination of Ms. Bhutto’s vehicle, playing a role that the police were reluctant to reveal to the Commission. 

“More significantly, the ISI conducted parallel investigations, gathering evidence and detaining suspects. Evidence gathered from such parallel investigations was selectively shared with the police. What little direction police investigations had was provided to them by the intelligence agencies. However, the bulk of the information was not shared with police investigators. In fact, investigators on both the Karachi and Rawalpindi cases were unaware of information the ISI possessed about terrorist cells targeting Ms Bhutto and were unaware that the ISI had detained for persons in late October 2007 for the Karachi attack.

“More importantly, no aspect of the Commission’s inquiry was untouched by credible assertions of politicized and clandestine action by the intelligence services – the ISI, Military Intelligence, and the Intelligence Bureau. On virtually every issue the Commission addressed, intelligence agencies played a pervasive role, including a central involvement in the political negotiations regarding Ms Bhutto’s return to Pakistan and the conduct of elections.

“The Commission believes that the failures of the police and other officials to react effectively to Ms. Bhutto’s assassination were, in most cases, deliberate. In other cases, the failures were driven by uncertainty in the minds of many officials as to the extent of the involvement of intelligence agencies. These officials, in part fearing involvement by the intelligence agencies, were unsure of how vigorously they ought to pursue actions that they knew, as professionals, they should have taken.”

This last paragraph of the UN Commission’s finding cited in the ATC ruling is an apt critique of the ATC ruling as well. BB’s assassination and subsequent events, including bungled up investigations, the lies and cover-ups, death of a prosecutor and a clumsy trial scream out loud that instrumentalities of our state made a deliberate and sustained effort to ensure that no one gets to the bottom of who killed BB and why. The scarier bit, highlighted by the fact that BB’s party was in government after her assassination, is that everyone has made peace with the fact that survival demands not entangling with powerful state instrumentalities.

The Saleem Shahzad Commission headed by a SC judge had concluded that, while information wasn’t forthcoming and he couldn’t name names, he also couldn’t give a clean chit to intelligence agencies suspected of foul play. The issue of forced disappearances is alive and screaming to this day without an end in sight. The Axact case has been messed up just like BB’s with investigators pressurised and at least one prosecutor being delivered the ‘message’ with a grenade attack.

We saw bloggers being picked up, charged and convicted for blasphemy in a media trial by faceless accusers before being let off in the dark of the night.

So here is the message. You can survive non-state actors if you antagonise them, but neither they nor you can survive if you cross the state.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu