Neither law nor order

Despite the Supreme Court’s orders, Aasia Bibi couldn’t be released from the smaller Multan prison to the larger prison that Pakistan has become for her. She was finally released on November 8 amid reports that she had left Pakistan. The government has denied these reports.

For Aasia Bibi’s sake, one hoped that the reports were true and she had left the country because the state with all its might can’t guarantee her life and safety even if it wants to. She can die in Pakistan but not live in it.

Forget Aasia Bibi, General Musharraf has told the Supreme Court that he can’t return to Pakistan for security reasons. Let’s assume he is exaggerating. But is it not true that many of those who have presided over Pakistan’s war with non-state actors can lead a relatively normal life post-retirement due to security concerns? If the only way the state can protect a citizen under threat or an official who has served in high office is by holding him/her captive, what does it say about the state’s writ and monopoly over violence?

The refrain of those who speak for rule of law and civilian authority has been that Pakistan has continued to choose order over law. Those that have the most might to enforce order sit atop our power pyramid, even if that disturbs our constitutional scheme of distribution of powers. Even while criticising the policies that have relied on non-state actors for the pursuit of the flawed notions of national security and national interest, the fact isn’t lost that we need a strong military to liquidate non-state actors if we so choose.

Let’s forget about the law for a moment. What remains of the rationale for those that have the most might sitting atop the power pyramid in our de-facto system if they are perceived to be unwilling or unable to enforce order upon non-state actors? If the state continues to be held hostage by the TLP even after the latter’s top leadership has invited faithful soldiers to revolt against the army chief and declared the senior-most judges of the SC liable to be killed, what will be provocation enough to act against the TLP’s violence and threats? Can the TLP’s ‘fatwas’ against the army chief and judges be undone?

We’ve been told that it isn’t right to drag the establishment into everything. That would be a fair point if they hadn’t intervened in other facets of national life in the past. In the middle of the TLP’s Faizabad lockdown, they publicly volunteered advice that the matter be settled amicably. They then seemingly brokered a deal between the TLP and the then government. This is just one instance. The point is that guardians of national interest intervene when they wish. To say that the TLP’s threat isn’t their business is disingenuous.

Can we count the times have we been told that such and such must not happen because it is a matter of the morale of the troops? When Musharraf had been summoned to the special court for indictment, he had to be diverted to the hospital because it was a matter of the troops’ morale. Here a band of thugs has passed a damning indictment against the current leadership while exhorting its troops to rebel. Does this hate speech not impinge upon the morale of troops?

Before Fata erupted, there were institutional structures that kept the peace. The political agent represented state authority and no one ordinarily crossed him. With an ill-advised visit to the house of a militant leader in 2004 and a subsequent peace deal (that didn’t hold even for a few days), the established structure and the authority of the political agent were blown up by the state itself. The TTP stepped up to fill the vacuum created. The state ultimately had to use its full might to wrestle back power from the TTP, and reestablish its writ.

When state authority capitulated in Swat and subsequently in Waziristan, we were told that use of force would lead to blowback and suicide attacks across Pakistan. Even with deals and appeasement suicide attacks continued unabated. Eventually there was a change in command. The new chief said: enough. Zarb-e-Azb commenced in Waziristan. Years of appeasement required the state to fight pitched battles to regain territory and establish control. But with the operation, suicide attacks came down and the blowback argument turned out to be vastly exaggerated.

The Lal Masjid operation wasn’t flawed because appeasement and inaction were preferred options. It invited criticism because the force used after much delay was disproportionate to the threat, and caused avoidable loss of life. Such use of force wouldn’t have been required if the state had acted when hooligans first captured the children’s library and initiated vigilantism in Islamabad. Musharraf let the matter simmer for political reasons: to magnify the threat from extremists and project himself as the man standing between crazy Mullahs and a nuclear Pakistan.

Is it only the civil law-enforcement agencies’ job to handle the TLP and other non-state actors? The problem with this is that you can’t swing between the de-facto and the de-jure system at will. If there is an unwritten understanding that non-state actors are to be handled by intelligence agencies, the local SHO or SP will not enforce the writ of the state. When the rug was pulled from under the feet of the Islamabad Police during the last TLP dharna at Faizabad and the thugs were finally seen off after being handed crisp notes, what lesson would the LEAs draw?

Iftikhar Chaudhry wasn’t a liked chief justice in 2007 when Musharraf sacked him. But the lawyers rightly fought back because it was the office of the CJP that was being robbed of its independence. The current CJP, while taking cognizance of TLP violence, has restricted the scope of inquiry to losses caused to citizens and excluded the threats hurled upon judges. These threats have not scandalised judges, but will obstruct administration of justice in blasphemy cases for times to come.

If there remains any basis for the offence of contempt of court to stay on statute books, it is to deter obstruction of justice. If there ever is any justification for contempt proceedings, it is to protect the ability of judges to dispense justice without fear. It is unlikely that judges would have shuddered recalling Nihal Hashmi’s threats. But the death threats issued by the Qadri-Rizvi duo are real. If this doesn’t amount to contempt, what else can? But then judges don’t command armed brigades to enforce the writ of law and their edicts. The state does.

Pakistan’s employment of non-state actors is defended (unofficially) on the basis of real politick. The difference of opinion between those who oppose the policy and those who defend it (within the plain of realism) is over whether the cost endured by Pakistan as a consequence of such policy is acceptable or not. If the TLP has emerged to threaten the state, despite state efforts to the contrary, we are truly doomed.

Even if there may be those who believe that undermining the army chief’s authority in the de-facto system and the SC’s authority within the de-jure system is acceptable cost for keeping the TLP in play, the state will ultimately need to liquidate the TLP. But the disease is spreading. Fighting it in the heart of Punjab will be a lot harder than dealing with the TTP in the borderlands.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu