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Unconditional talks?

September 23, 2013

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IS it not extraordinary that the prime minister and the federal government assume they possess legal authority to hold unconditional talks with the Tehreek-i-Taliban Pakistan (TTP) and other terrorists?

Our Constitution and related legal principles do not endorse such assumption. The prime minister and parliamentarians have all sworn an oath to preserve and protect the Constitution. It is a settled principle that the authority vested in state functionaries is the authority delegated to them by the people and must be exercised as a sacred trust within limits prescribed by the Constitution.

The distinction between acts of an individual and those of state functionaries is as follows: a private citizen is free to do what he is not prohibited by law to do, while a state functionary can only do what he is explicitly authorised by law to do. What this means is that while the TTP, that doesn’t recognise our Constitution, can elect to engage in conditional or unconditional talks with the state, the state and its representatives are bound by the framework of the Constitution and do not have the luxury to discuss terms of peace that travel beyond it.

This raises key questions: can the state accept the continuing existence of the TTP as an armed group even if it agrees not to attack citizens, officials and state property? Can the state relinquish its obligation to uphold fundamental rights across Pakistan, including within tribal areas, or delegate its responsibility within a specified region to a non-state actor such as the TTP? Can the state release undertrial or condemned prisoners on the TTP’s demand as a confidence-building measure? Can the state make a pact with the TTP even if it refuses to recognise the legitimacy of our Constitution?

Article 256 of the Constitution is unambiguous: “No private organisation capable of functioning as a military organisation shall be formed, and any such organisation shall be illegal.” The TTP is not just capable but has been functioning rather effectively as an organisation fighting and killing our security forces.

It is proscribed under the anti-terror law and cannot be allowed to exist as such in view of Article 256 unless it disarms and relinquishes violence. The TTP giving up arms and violence thus must be a condition for a peace pact.

There is a widely held false belief that our tribal areas fall beyond the writ of the Constitution. While this might be true in practice, it is not so in principle. Article 247 does make special administrative arrangement for Fata by ousting the jurisdiction of the high court and the Supreme Court and delegating the authority to legislate in relation to such areas to the president. But the Constitution neither curtails the application of fundamental rights to tribal areas not relieves the state of its obligation to uphold such rights.

The inalienable right to life, property, liberty, dignity, equality and due process guaranteed to citizens residing across Pakistan applies equally to citizens living in the tribal areas. Even if the courts have not so far exercised judicial review powers to scrutinise regulations promulgated by the president in relation to the tribal areas, they don’t lack such jurisdiction. Simply put, the president wields no legal authority to promulgate regulations for administration of tribal areas that contravene enumerated fundamental rights or other provisions of the Constitution.

What this also means is that in the name of peace the state can’t cede control of North Waziristan or another tribal area to the TTP or leave the protection of guaranteed fundamental rights to the will and grace of the terrorists. It is important to understand that our form of federalism is inclusive and cooperative. Islamabad or Lahore or Karachi cannot decide that no citizens from tribal areas will travel or settle down in these cities. Article 16 of the Constitution guarantees freedom of movement to everyone.

Short of ceding territory and allowing the creation of a Taliban emirate as a new state, the government cannot hand over to the TTP an autonomous area within the tribal belt to administer in accordance with its own whims and wishes, whether in the name of the Sharia, tribal custom, tradition or peace. Given our constitutional structure, it will not be possible to prohibit the movement of men and arms from such an area to the rest of Pakistan, not to mention the ideology of intolerance, hate and violence.

Further, the Constitution doesn’t permit any government, whether local, provincial or federal, to adopt or practise any law or custom that contravenes fundamental rights. So, for example, the state cannot allow the TTP to prohibit girls from getting educated as barring them will breach Article 25(a) that mandates the state to educate all children between ages five to 16, and also Article 25, being discrimination on the basis of sex. The TTP’s allegiance to the Constitution thus has to be a condition for a peace pact.

Regarding the release of prisoners, our criminal law states that no prosecution against an accused can be withdrawn except with the court’s permission. Thus undertrial prisoners cannot be released at the government’s discretion. However, once a court finds someone guilty, the provincial government has the authority to pardon the convict, and so does the president. But to state the obvious, laws provide for imprisonment of those who have established through their conduct that they are a threat to society if let loose.

What rational basis would the state have to pardon hardened terrorists who retain the urgent resolve to revert to their murderous ways if set free, like those who escaped from Bannu or D.I. Khan jails? Crime is not a private matter between two individuals or an individual and the state. It is an offence against society, and in prosecuting and punishing the criminal the state acts on the society’s behalf. Thus, a de-radicalisation programme and continued monitoring of terror suspects will have to be a precondition for an amnesty scheme in the interest of society’s safety.

The futility of talks with terrorists and misdiagnosis of our terror problem notwithstanding, the position that the government can engage in talks unconditionally is simply untenable.

The writer is a lawyer. sattar@post.harvard.edu

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