199902.21
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Laws Must Stand Despite Terrorism

The NEWS International

21 FEB, 1999

The oracles of law have spoken. They have spoken in fulfillment of their duty to protect, preserve and safeguard the Constitution. Their words have come as no surprise to those whose vision was clear.

The Supreme Court’s judgment on military courts on February 17,  is being widely welcome by everyone, except the government. On Friday, The Nation reported the Prime Ministers serious dismay over this verdict. He also vented his feelings in a speech later that evening. The government’s response to the verdict is quite misplace in assuming that the government’s perception of reality does not suffer from some pathological abnormalities, could the government have expected any other verdict? Does the government have no memory, or does it suffer from memory lapses? It was not very far back in 9 when on August 13, 1997 the present government had promulgated the Anti-Terrorism Act .this law was thought to be an indispensable instrument for controlling the unprecedented wave of sectarian violence and other terrorist activities. The pursuit of this legislative panacea was so passionate that a Constitutional crisis of unprecedented dimensions hit the country. It culminated in the attack on the Supreme Court and ouster of Chief Justice Sajjad Ali Shah Ali Shah along with President Farooq Ahmed Khan Laghari.The issue in May and August 1997 was no different than that of today. The treatment prescribed earlier for the terrorism malaise was special courts under the Anti-Terrorism Act, 1997 in the words of the Attorney General of Pakistan, now a “stronger anti biotic was needed”, therefore, military courts had to replace the courts under the Anti-Terrorism Act.

One phenomenon which remains a mystery, and which the editorial note of a distinguished Urdu newspaper has clearly pointed, is the quality of the legal advice to the federal government by its capable team of lawyers. Two of them constitutionally responsible for such advise are the Minister for Law and the Attorney General. It is amazing how such distinguished lawyers could advice the government to set up military courts when the judgment of a five-member Supreme Court bench had laid down the parameters of any tribunal or court which could competently share judicial power with the courts. The unanimous judgment in the Mehram Ali case has now received reiteration by a larger nine member bench has become the basis for the present verdict. Had the government’s advisors forgotten Mehram Ali’s case? Do its legal physician suffer from amnesia?

One wonders why the government has chosen to interpret the supreme court judgment as being against it in as much as this reinforces the authority of the government and that of constitutional rule and provides powerful protection against the danger of greater constitutional deviation by blocking a checkmating the smaller ones.

The court has refused to accept ‘state necessity’ has an excuse for the extra constitutional measure of setting up military courts since smaller constitutional deviation in the past had always given way to the total scrapping of the constitutional and ruthless martial laws. The result of such deviation was that the political process in the country has not been able to ripen into sufficient maturity.

The government has demonstrated a singular lack vision in its response to terrorism. It has never made a serious effort by constituting a commission or some other body devoting itself to the study of causes and phenomenon of escalating terrorist activities, both sectarian and other types. Though it has made several attempts to introduce laws including the ill-advised last Ordinance XII of 1998 introducing military courts, no administrative reforms have come about to improve the efficiency of law enforcing agencies. Unfortunately, the government has always understands the issue in a very narrow manner. It has explained away the terrorism problem by putting the entire responsibility of controlling terrorism on the courts, and not the administration whose primary responsibility is to keep an eye on the movement of such groups which are likely to be involved in terrorism. The rationale behind setting of intelligence agencies had always been detection of crime and watching activities of those whose designs had not yet surfaced on the crime scenes. Unfortunately the entire energies of such agencies were channelised to hound and hunt political opponents. The administrative responses to terrorism and other organised crime is bogged down by inefficiency and corruption.

If we look at some important cases, it will become clear that criminals are not apprehended for months, as the law enforcing agencies do not have any modern technology to detect the incident of crime. Invariably during all period, the government of the time had their own set of favorites having a distinguished place among ‘professional terrorist’. In Karachi the murder of Maulana Salahuddin and Justice Nizam Ahmed and his young son could not be detected under the government was changed. No action is taken against ‘protected’ terrorists until certain development resulting parting of ways between power partners.

Although the prime minister in his televised address on Friday tried to play up the nations sentiments by exonerating himself from any responsibility for possible deterioration in law and order and shifting the blame to the Supreme Court and its verdict, sooner or later he will realized that the Supreme Court has done him a great favour, it has blocked the way of more constitutional deviations. This is a big step toward the supremacy of the constitution and the rule of law. Ultimately, he will benefit from this judgment if he chooses to follow the rules.

The executive decision-makers conveniently forget that harsher punishment and short-circuiting of procedure for fair trial have no where in the world ensured positive results.

Sectarianism is an old phenomenon with its roots in the history of mankind. Puritan oppression in the history of England claimed thousands of lives. Muslim history is also full of such tales. One must understand the mindset of terrorists. A person who decided to kill another for his views is not deterred by the punishment because it has been given out to him by his tutors that by spraying bullets at a particular section of society he will endear himself to his group and his creator. Such terrorists, in their own judgment, are ‘holly warrior’ and true believers. Therefore, extreme penalties have not so far succeeded in deterring any such activist from dissociating himself from his ‘noble mission’. In fact solutions are to be found elsewhere.

No doubt, terrorism presents a direct challenge to the government’s primary responsibility of ensuring public safety. But democratic governments do not have a free handing responding to such threat. A lawless approach carries the risk of alienating the general public. This place into the hands of the terrorist, who is able to protect this lawlessness as ‘state terrorism’ and himself as a hero waging war against it.

Terrorism must not be fought with means that erode the strength of established legal institutions. It should be fought by strengthening these institutions. It is unfair, both to the military as well as the civil power, to involve army in the fight against terrorism.

There are a number of dangers involved in deploying the army in this role. An unnecessarily high profile may serve to escalate the level of violence by polarizing pro and anti-government elements in the community. There is a constant risk that a repressive over reaction or an error of judgment by the military may trigger further violence; and that the civil power may become over-dependent upon the army’s presence, and there may be consequent failure to prepare the police for gradually reshouldering the responsibility.

Many democratic state which have experience prolonged and lethal terrorist campaign of any scale within their borders have at some stage introduce special anti-terrorist measures aimed at strengthening the normal law, in order to deal with grave terrorist emergency. However, these emergency carry risks for the democratic system and it is important to identify these.

Never to be tempted into using methods which are incompatible with the liberal values of humanity, liberty and justice must always be cardinal principle of a liberal democracy in dealing with the problem of terrorism, however, serious these may be. It is a dangerous illusion to believe that once can protect liberal democracy by suspending liberal right and liberal forms of government. Contemporary history abounds in examples of emergency or military rule converting a democracy into a dictatorship, with an irrevocable logic.

Therefore, even in its most severe crisis, a liberal democracy must seek to remain true to itself, avoiding on the one hand the dangers of sliding into depression and, on the other hand, avoiding inaction and weakness. There must not be deliberate suspension or limitation of civil authority on ground of expediency. However, hard the going gets in copying with severe internal terrorism or international terrorism, or both, a liberal democratic government has to preserve constitutional government the attempt to rule by emergency decrees abandonment of a democratic process, and abridgements of democratic constitution must be resisted. The government must show that its measures against terrorism are solely directed at quelling the terrorists and their collaborators and at defending society against terrorism. Fighting terrorism should never mean surrender of basic human values or overstepping constitutional limitations.

It is not only the individuals who suffer in such cases, but the repercussions for the rule of law are also profound. The loss of public confidence is almost tangible. The corrosive effect within the system is immeasurable. The playwright Robert Bolt employed a powerful image in his play “A Man for All Seasons”, based on the life of Thomas More. In that play More describes having his principles in his hands as if supping water. He asks where would we be once we open our fingers?

In destroying terrorism let us not destroy ourselves from within. Terrorism must fall but the constitution must always stand.