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The legal side of terror

January 31, 2014

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— File photo
— File photo

WHETHER mild tinkering or radical overhaul, whenever the country’s anti-terrorism legislative framework has been reworked the results have tilted in a particular direction: towards draconian, security-state practices and away from a fundamental rights-based approach.

Historically, the reasons for that tilt have been relatively straightforward: civilian politicians have quickly and wholly deferred to the army’s demands and opinions on the security front. But history appears to be repeating itself with the PML-N government’s decision to promulgate the controversial Protection of Pakistan (Amendment) Ordinance, 2014.

“I thought we were not a police state anymore, that we are a welfare state,” said Munir Malik, attorney general of Pakistan until his resignation earlier this month. “The fundamental problem is we are unable to go on, to get away from the past,” Malik added.

The PPO amendment has been widely criticised in legal circles for being shoddily drafted and incompatible with constitutionally guaranteed fundamental rights. Even senior government officials, speaking on the condition of anonymity, make little attempt to defend it – and readily explain its true purpose.

“The original PPO, in October, that was very much something that the prime minister himself had also wanted. This one (the latest ordinance) came from the brass because of institutions – the (Supreme) Court’s direction that the missing persons issue be addressed through legislation,” a senior government official said.

In truth, there are few true advocates of a rights-based approach in any corner of the state apparatus when it comes to dealing with the terrorism threat. Most echo the approach of Akram Sheikh, the go-to lawyer of the PML-N leadership, who told Dawn: “I am a proponent of fundamental rights, even the fundamental rights of a terrorist.

“But I also believe a balance has to be struck between protection of fundamental rights and dealing with the terrorist threat. Both are of vital importance to the state.”

Still, it is question of degree – and the civilian leadership tends to be more aware of the need to uphold constitutional safeguards and protect fundamental rights.

The senior government official who admitted the recent PPO was dictated by the army, said, “We will revisit this. There will be safeguards and review boards and the like. There will need to be sunset clauses,” a reference to time limits on legislation.

As for the army, a lawyer who has advised its leadership on legal matters claimed there is a nascent realisation within the army leadership that the old way of doing business may have to change.

“Before it used to be, ‘We need this, now make it happen.’ Now they ask what the legal position is first and what can be done,” the lawyer said, speaking on the condition of anonymity.

“It’s particularly true when it comes to the international climate and it began after 2008. The Mumbai attacks made them realise how much legal trouble they could be exposed to.”

Domestically too the twin Protection of Pakistan Ordinances are seen by some legal analysts as an improvement over past practice.

“Previously they (the army) was operating completely outside the law on the missing persons issue,” said Salman Akram Raja, a Supreme Court lawyer. “Now, by using terms like enemy alien and specifying that Article 10 will be applicable to enemy combatants, they are using the language of the constitution.”

But Raja and other legal analysts suggest that even if the legal challenges to the second PPO are fended off, the legislation is more legal kabuki than a meaningful attempt to resolve the missing-persons issue.

Said one prominent constitutional expert who spoke on the condition of anonymity: “The retrospective effect of the PPO is the most problematic area. But even with that in place, the army has been denying before the courts they have the missing persons in their custody, so how will they be able to admit they have them now?”

Meanwhile, a familiar problem continues to plague the efforts to revamp the country’s anti-terror legal framework: ad hoc-ism.

Saba Imtiaz, a journalist and author who tracks anti-terror legislation from a human rights perspective, said, “You can see it right there in the language of laws like the PPO how they (the legal drafters) are responding to immediate events instead of thinking how this ought to work over a number of years.”

Imtiaz added: “So tourists get killed in Chilas, and then targeting tourists becomes punishable. Polio or aid workers are targeted, then targeting them becomes an offence. It’s like they are responding to the news instead of thinking of frameworks and long-term effects.”