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Legal Eye

October 27, 2019

Our system at work


October 27, 2019

An Anti Terror Court letting CTD officials walk free after the Sahiwal slaughter of innocent citizens isn’t the system malfunctioning. It is the system working as it is supposed to.

Our system is designed to protect the state from the citizen. We are told that citizens in parts of the country have declared war on the state. When there is war, there are casualties. If the end is to save the state, which is a noble end, the state must employ all necessary means – even questionable ones. In pursuing such end innocent citizens becoming casualties is an acceptable cost for the system.

Our ends-justify-means system has used intelligence-based operations (IBOs) to eradicate terrorists through encounters. Credit for such operations in Punjab has gone to the CTD. Malik Ishaq was the casualty in one such operation. And no one shed tears for him. But a system that gets comfortable with taking out suspects without getting distracted by due process will every once in a while make mistakes and take out wrong targets either due to incorrect information or abuse of authority by individuals within the system. Sahiwal was that mistake.

How does the state respond then? Do you throw the entire project under the bus because a few cops got an IBO wrong? What message would that send? What happens when the next Ishaq-style encounter is ordered and officials worry about due process and such because their buddies were punished for murder in one IBO gone wild? Would insistence on legality of means being employed not compromise a noble end?

Sahiwal is an unintended consequence of the system our state has put in place. When the prime minister tweeted that he would ensure that justice is done to the perpetrators of Sahiwal, he probably hadn’t been briefed by the system that mistakes are sometimes made which need to be covered up. Sahiwal isn’t an example of how due process is the problem for the rest of us. It is an example of how doctoring due process is the problem for the rest of us.

Sahiwal happened in plain view. The kids were there and saw their parents being killed. The family disclosed how it was being threatened. Eventually during trial, the eyewitnesses resiled from their testimonies. They didn’t attend the identification parade. The part of the state that had the CTD’s back was also the part responsible for investigation, collecting evidence and prosecuting the accused to secure a guilty verdict. Should it be surprising that it sided with itself and not the victims?

When Shahzad Saleem’s tortured body was pulled out of a canal no one thought his killers would be found. There was the usual outrage that follows such ghastly incidents (as also witnessed after the Sahiwal killings). A judicial commission comprising Justice Saqib Nisar was constituted. The end product was a lengthy report largely comprising platitudes and the conclusion that while the state couldn’t be given a clean chit the murder could also not be pinned on anyone. The killers went scot-free.

There was a time we were perturbed about missing persons. There was broad consensus that it is illegal to abduct people and detain them without charging them and presenting them before a magistrate. The system responded and we saw the PPP and ANP governments promulgating Action in Aid of Civil Regulations for Fata and Pata, which legalized the indefinite detention of anyone the state wished to hold without charge. The PPP and the ANP now also find KP’s Action in Aid of Civil Power Ordinance very objectionable.

The Supreme Court has suspended the Peshawar High Court’s order declaring the KP Ordinance unconstitutional. A larger bench is being constituted to decide the matter. The last time the court had to rule on the scope of the state’s power in holding and trying citizens in suspension of basic rights was when military courts were created. The PML-N had chaperoned the 21st Amendment through parliament, just like it put together the Anti-Terror Act back in 1997.

The SC was counseled that military courts were the need of the hour. The SC that had struck down many provisions of the ATA back in 1999 went along and acquiesced in the need for military courts. Military courts are now gone. With Fata and Pata becoming a part of KP, the immunity accorded to previous state actions there is also gone. The state thus needed the KP Ordinance. The SC will now be told how the skies will cave in if the ordinance and detention centers aren’t retained.

The system believes in collective responsibility. The FCR might be gone in letter but is alive and well in spirit. US-based Human rights activist Gulalai Ismail’s father, Professor Ismail, was already facing various charges in his capacity as an extension of Gulalai. The day the SC suspended the PHC order on KP Ordinance Prof Ismail was picked up outside the PHC. According to a Foreign Office clarification, he has been detained by law-enforcement agencies in a cyber crime case.

The state didn’t have the backs of those responsible for the Model Town killings. We saw that public outrage over the matter was brought to a simmer. The dharna by the PTI and PAT didn’t raise any legal or ethical questions when the target was the PML-N government. The dharna by the TLP and the use of hate speech to rile up anger against PML-N leaders didn’t raise any questions of constitutionality and state security.

But once dharnas accomplished their goal, the demand for bringing the killers of Model Town victims to justice lost its relevance. Why remain fixated on the means when the end has been achieved? The long march by the JUI-F is the unintended consequence of kosher dharnas by the PTI, PAT and TLP. Questions are now being asked about its legality and the challenge it poses to state security. Will we see a good-dharna-bad-dharna policy?

Pakistan has sustained much damage due to unintended consequences of bad choices. The TTP was the unintended consequence of the non-state actor policy. We have an FATF problem and the need to justify to the world that we are not sponsoring terror in Kashmir. That the Modi regime is literally getting away with murder in Kashmir with our diminished ability to rally the world is an unintended consequence of the system’s past mistakes.

All systems make mistakes – but have the means of self-correction to prevent a repetition of mistakes. Our system suffers from an autoimmune disease: it destroys antibodies that fight toxins and affect corrective action. Anything that forces introspection is identified as a problem, whether it is journalists, civil society, independent-minded judges, bureaucrats or political leaders. It punishes dissent and rewards complicity. An autoimmune disease is a terrible thing for the body.

But if you fix the system, it can’t be doctored at will to produce desirable outcomes in select cases. And how do you even start, when the all-powerful system destroys anyone proposing installation of checks and balances?

The writer is a lawyer based in Islamabad.

Email: [email protected]