Lacking legality

February 2, 2014

Lacking legality

In the last week, the PPO of 2013 has been enforced through a statutory regulation order, a mass grave with yet to be identified bodies has been discovered in a region of Balochistan known for nationalist resistance, and the prime minister has surprised the media (if no one else) by persevering with Taliban talks even after definite signs that the armed forces have gone on the offensive against militants in parts of FATA.

One way of making sense of these facts is to see them as the outlines of an undeclared security policy: the state, with the support of the elected government, aims to minimise resistance, dissent, and accountability while it continues to abet a climate of fear and obfuscation in which its authoritarian and illegal actions might appear to be a necessary response to an overwhelming threat.

The current security environment is marked by the perception of an irreconcilable and unmanageable threat menacing the life and liberty of citizens, and which, in the same stroke, makes palatable state encroachments on citizen rights that put life and liberty at risk.

The extent to which extraordinary security measures can deal with security threat is questionable in the light of successive waves of insurgency in Balochistan and the ebb and resurgence of militancy in Afghanistan and Pakistan after 9/11. What is more certain, however, is that coercive space ceded, whether to state agencies or to the militants who offer a grotesque mimicry of a notional state, is hard to win back. Looking at it this way, the question not receiving sufficient attention right now is not, ‘should there be talks with terrorists?’, but, on balance, whom does the current security environment enable to act with reduced scrutiny and restraint?

Top of the list will be the shadowy ensemble known as the ‘security establishment’, which can incorporate or exclude elements of the government, depending on its ideological leaning and executive function. It is no accident that the PPO has been passed by a government dominated by right-wing parties who have a history of enabling undemocratic forces -- the armed forces as well as various proxy militias who have reconstituted into the force nominally called TTP -- gain political space for coercive action.

As for militancy, it is by now clear that ‘talks’ marks a type of negotiation that can either try to find political solutions while creating conditions of law and order as well as social transformation that disempower the use of illegitimate coercive force; or they can go in the opposite direction and empower the use of extra-legal measures and violent intimidation in pursuit of security objectives.

In addition, the fear of militancy can be used to overrule dissent and to lend political support to illegal state action against nationalists in Balochistan and political opposition elsewhere.

Political scientist Arnold Wolfers wrote in a well-known paper ‘"National security" as an ambiguous symbol’ (1952): "every increment of security must be paid by additional sacrifices of other values… At a certain point, by something like an economic law of diminishing returns, the gain in security no longer compensates for the added costs of attaining it. As in the case of economic values and preferences, there is usually disagreement among different layers of policy makers as to where the line should be drawn."

The paper warns that slogans like ‘national interest’ and ‘national security’ "may not have any precise meaning at all. While appearing to offer guidance and a basis for broad consensus, they may be permitting everyone to label whatever policy he favours with an attractive and possibly deceptive name".

While this may go against the rather hysterical, if well-meaning, tone of media analyses in the recent past, looking at security not as a visceral response of force sufficient to quash a threat but as a matter of incremental gains and losses that gradually modify the situation may perhaps make for a saner approach.

In this perspective, the issues raised by the PPO are not new. We have encountered them before vis a vis drones and missing persons, but have failed to connect the dots between these discourses, which present similar areas of debate and contestation.

In both these discourses, the goals of law enforcement as defined by unaccountable states have been prioritised without regard to its procedure or impact, and the absence of competent state law enforcement has been used to justify the ceding of extraordinary legal powers to the state. We have been asked to accept the lack of accountability of the enforcing authorities in a spirit that can be called pragmatic at best and opportunist at worst.

It is possible to see now that the lack of accountability of these so-called pragmatic and extraordinary measures is not merely an incidental consequence of their use but the distinct advantage that they proffer, and their promulgators are not blind to the long-term political advantages of their eventual normalisation. It is possible to see it because PPO is an attempt to extend legal cover to unaccountability by state agencies, trying to accomplish the ostensible goal of law enforcement by serving the more entrenched goal of strengthening the hand of an already unaccountable security establishment. Its promulgation should be read as a symbolic act that gives political and legislative backing to actions which might be illegal and disproportionate, and it intensifies the already existing provisions in the constitution to deprive those affected by such state actions of legal redress and accountability.

In this sense, it is necessary to reiterate that the question running through security debates now raging in Pakistan is not only whether or not we need to take ownership of a war. It is whether unaccountable force can be legally and politically sanctioned in the face of an undeniably grave security threat.

Lacking legality