THE federal government took the initiative to counteract terrorism, yet this step was taken without the inclusion of a legal narrative. The Pakistan government is under the false impression that a position on counteracting terrorism is equal to having a narrative on counterterrorism. This narrative, in simple terms, is a comprehensive explanation of why the government has taken a particular position. The more detailed the narrative, the more defensible the position. The strength of the narrative is further bolstered by the addition of a sound legal argument.
Thus far, government representatives have repeatedly affirmed the decision to fight against the proliferation of terrorism and the threat of terrorism, but this is less narrative-based decision-making and more political posturing. The nearest the government may have come to providing a viable narrative was in the creation of the national security policy. This opportunity, however, was underutilised through the use of boilerplate generalities in the published policy, doing little to reassure members of the intelligentsia that the government’s position is one of strength in counteracting terrorism.
Ideally, the cabinet should have issued a narrative regarding the policy for the constitutional enforcement of operations. This detailed document would convey the legal reasoning for why the federal government is politically motivated to combat terrorism. For instance, the policy could say the government and cabinet are bound to take all necessary measures to uphold the Constitution in all the state’s enumerated territories. The government would then have a duty to convince those engaged in terrorism to lay down their arms and enter the negotiation process.
In case it failed, those engaged in terrorism would stand in violation of Articles 5 and 256 of the Constitution by waging a war against the state. Pursuant to this policy then, the federal government would be compelled to commission its law-enforcement agencies, by law, to disarm and disable these elements and restore public order.
In the very same policy, where the federal — or provincial — government felt that the police did not possess the necessary capability, Article 245 of the Constitution could be invoked for the armed forces to act in aid of civil power in a specified area. The purpose of commissioning the armed forces would be to more effectively enforce the Constitution in both letter and spirit and use force to disarm or neutralise those who attempt unlawful resistance. The Supreme Court has reaffirmed that it is only under Article 245 that the armed forces are permitted to act.
The policy for the constitutional enforcement of operations would accordingly state that the federal government, upon notification under Article 245, is also competent to issue executive orders in the form of an operation manual on the use of force in an internal conflict. The manual would include the limits on the use of force, safeguards concerning the right to engage and caution with regard to the civilian population. The policy would preserve the right to issue these directions pursuant to the federal law or possibly incorporate these directions in the directive commissioning the armed forces under Article 245.
This policy would also state that Pakistan, as a responsible member of the international community, has a duty and, more importantly, a legal compulsion under international law, to counteract terrorism. If it does not act in accordance with these international legal requirements, Pakistan would be identified as a state that is non-compliant with its obligations as binding under the resolutions of Chapter 7 of the UN Security Council.
Additionally, the federal government’s policy should contain reasonable guidelines for the media detailing the responsibility associated with the coverage of law-enforcement actions. In this regard, the policy could reference a recent judgement authored by the chief justice of the Balochistan High Court on the media’s role, partly in relation to Section 11L of the Anti-Terrorism Act, 1997.
Within the ambit of the counterterrorism law, this judgement has created an obligation for all professionals, including journalists, to report relevant information to law-enforcement agencies. The policy would also do well to include a statement regarding fair reporting on information shared by those perpetuating acts of terrorism, as opposed to glorifying their unjust cause.
If such a comprehensive policy statement were available, the government would be in a substantially better position to defend its counterterrorism agenda in the media and elsewhere. The cost of the lack of a narrative is self-evident and has resulted in political debacles such as the decidedly unfavourable response to the Protection of Pakistan Ordinance. The government is not in a strong legal position to explain, let alone defend the PPO because it is woefully unclear on the exact applications of this instrument and its rather divisive choice of language.
The absence of an identifiable policy also impairs the federal government’s ability to assist the judiciary, especially the Supreme Court, on the legal aspects of the constitutional enforcement of operations. The unfortunate result is that the courts are issuing judgements on an ad hoc basis without holistically developing the jurisprudence keeping in view both the legal environment of internal conflict and the federal government’s corresponding agenda.
It would be infinitely more helpful if the relevant ministries (ie the Ministry of Defence) in the government, along with their legal teams, prepared this type of policy, establishing a more useful framework to be understood by other national stakeholders, including parliament, the media and most of all, the people of Pakistan.
The writer was federal law minister in the previous caretaker set-up.