TERRORISM is considered the most urgent public issue facing Pakistan. In popular public discourse about terrorism, the role of the courts that are dealing with terrorism cases is considered to be critical in the fight against it.

Underlying this popular public discourse is a theory about the law and the courts which is accepted as self-evident truth. This theory considers the lack of convictions by the courts as one of the main causes of terrorism. This is because it is propagated that the lack of convictions leads to both the acquitted militants again committing acts of terrorism and also that these lenient, non-convicting courts have no deterrent effect on other potential or actual militants as there is no fear of punishment. In short, this theory propagates that accused-loving or accused-fearing courts cause terrorism in a major way.

But what if this popular, ‘self-evident’ theory is really a myth?

Court causing terrorism myth: The ‘court causing terrorism’ theory is considered self-evident common sense. It would thus be quite shocking to many to learn that there is absolutely no evidence – from any other country in the world fighting terrorism or from historical analysis – that the major cause of terrorism is the lack of convictions by the courts or that militants or terrorists don’t commit acts of terrorism because of fear of punishment or of guaranteed court convictions. There are multiple reasons for the falsity of this theory. Firstly, the causes of terrorism are complicated and complex. Terrorism or militancy is caused by ideological, political, economic and social reasons and not by what the courts are doing in these terrorism cases. For example, does anyone seriously believe that the main cause of or solution to religious and sectarian militancy or political militancy of the Baloch separatists or the MQM is the lack of convictions by the courts?

There is absolutely no evidence that fear of punishment prevents militants from committing acts of terrorism.

Secondly, research after research has shown that these acts of terrorism are not committed only by repeat offenders but that the majority are committed by first-time or non-hardcore militants. So no matter how many people you convict, unless the causes of terrorism are removed, there will always be an endless supply of first-time or non-hardcore militants. For example, the American ‘war on terror’ has shown that it is an endless war because first it was Al Qaeda, then the Taliban and now the self-styled ‘Islamic State’. Thirdly, fear of punishment is only one of the reasons, and at times (especially in ideologically motivated conflicts) the least important reason, guiding human beings in violent matters. Human beings are complicated, ideologically driven, emotionally charged and risk-taking creatures, whose motivations cannot be reduced simply to the fear of punishment. Or to rephrase a popular PPP political slogan, how many militants will you convict, a militant will emerge from every home.

Limited but important objectives: That is not to say that the courts don’t have a limited but important role and effect on terrorism or militancy. Firstly, justice for the victims of terrorism by punishing the guilty is the foremost objective, regardless of whether it prevents militancy or not. Moreover, justice for the victims contributes towards the legitimacy of the state. Secondly, how can punishing innocent persons prevent terrorism? This can only be ensured by providing every accused person a fair trial conducted by an independent court. This is especially critical in countries like Pakistan with a history of miscarriages of justice because of politicised and incompetent investigations and prosecutions.

Thirdly, by convicting and punishing dangerous and hardcore militants, it ensures that long-term incapacitation of these militants prevents them from committing violent acts again. Fourthly, one of the differences between a constitutional state and legal anarchy is that in the former even the most violent militants have a constitutional right to a fair trial. Our hatred for militant violence should not lead to the destruction of the very constitutional state that we are trying to protect. Moreover, research has shown that humane treatment of militants helps create a stake and incentive in the system for them. It helps some of them, especially non-hardcore militants, to leave militancy and pursue the same political objectives through peaceful means. On the other hand, inhumane treatment by the justice system reinforces the militants’ views about overthrowing the system.

Multi-dimensional problems: The lack of conviction of the guilty and the prosecution of the innocent are two of the obvious problems facing the anti-terrorism courts (ATCs). But what if one of the sources of continuing militancy is the stigmatisation, brutal state violence and incarceration of non-hardcore militants or ideological supporters of these militant causes? A century of research into criminality and violent actions shows that brutal state repression, long prison sentences and stigmatising people as ‘terrorist’, ‘extremist’, ‘sectarian’, ‘traitors’, etc, ensures that non-hardcore militants or mere ideological supporters are completely alienated or cut off from society, become firmly incorporated within militancy and as a consequence, become hardcore militants.

Right reforms: Any debate about reforming the ATCs must debunk three false preconceptions. Firstly, the ‘arrogant presumption’ of the militarised terrorism policy of the Pakistani state which is that if we (ie police or military establishment) say that someone is guilty then he should be convicted by the courts regardless of the lack of evidence and without the need for a fair trial. Secondly, the ‘denial presumption’ of the legal community which is that there is nothing seriously wrong with the functioning of the ATCs and that the entire blame lies with the investigation and prosecution arm of the state. Thirdly, the ‘Super State presumption’ of the executive and judiciary which is that reforming the ATCs is not difficult. This presumption doesn’t face up to the reality that the Pakistani criminal justice system has collapsed and a collapsing Pakistani state has only a limited capacity to reform itself.

We must recognise that a key obstacle in reforming the ATCs is an intellectual poverty maintained by vested interests and a love affair with our unjustifiable precious presumptions.

The writer is a lawyer.

Published in Dawn, August 11th, 2015

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