The Romulus principle?

Published: February 7, 2012

The writer is Executive Director, Jinnah Institute. The views expressed are his own

In writing about the founding of the Roman Republic, Niccolò Machiavelli famously said of Romulus: “It is well that, when the act accuses him, the result should excuse him; and when the result is good, as in the case of Romulus, it will always absolve him from blame.” Romulus had first killed his brother and then “consented to the death of Titus Tatius, who had been elected to share the royal authority with him”.

From this we get the famous phrase, “when the act accuses, the result excuses”. But does it?

There are two ends in choosing from two bad courses of action, utilitarianism and moral absolutism. Much has been written about them in various spheres of human activity, from individual choices to warfare to the application of law at the intersection of the legal and the political, an area where exceptions are often created and where law is made to denote its own absence. The very problem is such as to defy neat categories.

Moral absolutism wants clear guidelines on dos and don’ts. Utilitarianism works on Romulus’ principle. Is it then possible, as some philosophers and jurists have posited, that the rightness or otherwise of a course of action must be weighed against both the absolute guidelines and the requirement of the circumstances? Perhaps. Consider a specific case.

The intelligence agencies apprehended 11 suspects in connection with attacks on the ISI’s Hamza Camp (2007), GHQ (2007) and Kamra Air Base (2008). Four of them, so far, have ended up dead while in custody. The Supreme Court of Pakistan has taken note of the deaths and asked the Advocate-General of Khyber Pakhtunkhwa and the Directors-General of the ISI and the MI to explain how the detainees may have died.

The ‘factsheet’ provided by the army begins in para 1 by stating categorically that the 11 suspects are “hard core [sic] terrorists”. Below, I reproduce, verbatim and without reference to syntactical and other errors, paras 2 to 5:

“2. These suspects were apprehended on various dates from different locations and produced in the court of law. However due to lack of evidence the accused were acquitted by the court of law. All these accused during the course of court proceeding had not only been threatening Superintendent Adiala Jail and the Judge but also to their families if they were punished.

“3. Same very day the accused were apprehended on the order of DCO under section 16, MPO. However on 28 May 2010 LHC, Rawalpindi Bench declared the detention illegal. On the day of release the accomplices of these terrorists (under the disguise of intelligence agencies) took them to their safe havens in FATA. To cover up their move to FATA their families filed writ petition in the Supreme Court of Pakistan, declaring them as missing persons. Under the direction of Supreme Court, LEA carried out operations in FATA and recovered 20 suspects from there including these 11 persons.

“4. Detainees were being interned under “Action in Aid of Civil Power Regulation 2011 d for FATA/PATA

“5. As per orders of Supreme Court 3 Meetings of all suspects were arranged, in January, September and December, 2011 by security agencies with their family members. All those family members who met with the suspects signed and verified the meetings and record of it is also available (italics added).”

The ‘factsheet’ then goes on to say that all the four detainees died of natural causes and lists them (the writer is in possession of the detailed reply).

The problem with this ‘factsheet’ is that it raises more questions than it answers. But let’s do this exercise on the basis of the assumption that these 11 suspects, as the army says, were/are indeed terrorists: why did two courts of law, at two levels of the judicial process, acquit them? The ‘factsheet’ itself says this happened due to lack of evidence. How can there be not enough evidence against an accused and he could yet be categorically declared a terrorist?

Ok, let’s assume technicalities. There is circumstantial evidence but nothing conclusive, a situation where you know that a hardened criminal is taking advantage of the legal system. It would entail choosing between seeing him walk off and dispensing ‘justice’ outside of the system. Did the security agencies decide on the latter course of action? That is highly possible. The police ‘encounters’ criminals all the time, why not terrorists?

That brings us to the causes of their deaths (I spoke with two doctors). Are the causes really the effects of how they were treated? For instance, “Amir Alias Khalid died on 13 August due to acute renal failure and acute gastroenteritis”. Gastroenteritis is eminently treatable but if allowed to worsen can lead to renal failure and death. Similarly, two died of anaemia (pancytopaenia and megaloblastic), which is no reason to die if treated properly. As for cardio pulmonary failure, every death certificate says that because ultimately that is what makes one die.

So, here’s the scenario: you are sure that X, Y and Z are terrorists but you can’t get a conviction. You know what they have done and you fear they will do more of it. You can’t execute them through a firing squad but neither can you afford seeing them walk off to kill more people. So you detain them under “action in aid of civil power regulation 2011” and create conditions that would slowly drain life’s juices out of them. You do take them to the hospital and get them to meet with relatives also. Then they die, and bingo! You have got rid of them and you have plausible deniability.

The result excuses? Is it choosing between two bad courses of action or actually between a bad and a perceived good one, assuming they were/are terrorists? But what if they weren’t? One can look at it in terms of human rights and legalities and draw a sneer from the hard-nosed. But what if this course of action is not a good one even in hard-nosed terms?

Published in The Express Tribune, February 8th, 2012.

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Reader Comments (29)

  • iman ali
    Feb 8, 2012 - 12:14AM

    “All these accused during the course of court proceeding had not only been threatening Superintendent Adiala Jail and the Judge but also to their families if they were punished.”
    That is the reason your courts do not convict terrorists and militants- does that mean terrorists should be allowed to walk and commit more atrocities? frankly one can’t blame the judges either- these cold blooded terrorists wipe out whole families in revenge.

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  • Nadir
    Feb 8, 2012 - 12:20AM

    The question that arises is that: Just because they are arrested and accused of terrorism are they terrorists? Just because intelligence agencies say they are, are they? Accusing them of making threats is fine, but given that there is no one to rebut them, it works conveniently for them.

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  • Feb 8, 2012 - 12:24AM

    No excuse for what our agencies are doing to these people by literally killing them under torture – why cannot our Courts get some sense too and try these people properly? Are they expecting a CSI style forensic work which is done within 45 minutes in each episode in Pakistan?

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  • Feb 8, 2012 - 12:36AM

    Hate speeches alone should be the basis of declaring someone a terrorists, these very dangerous hate preachers produce hundreds of psycho serial killers.

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  • Feb 8, 2012 - 12:40AM

    Hate preachers who mentor hundreds of psycho killers are the biggest terrorists, they should face full force of the law. Also terrorists should be tried in special anti terror courts.

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  • Syed_Raza_Ali
    Feb 8, 2012 - 1:08AM

    How long will we wait before revisiting the law of evidence ? Each and every alleged or otherwise terrorist slips out of our judicial system ? What is the parliament waiting for ? Why don’t we write on this ?

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  • TightChuddi
    Feb 8, 2012 - 1:15AM

    So what is the problem?

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  • ak47
    Feb 8, 2012 - 1:23AM

    the writer makes reading difficult in paras 3 and 4 whereas the central idea is pretty simple.. I agree with the central idea but please make reading easy..

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  • Muhammad Karim
    Feb 8, 2012 - 1:54AM

    Ejaz-lots of literay phrasology but lets be clear. I remember in 2007 there was a ‘missing’ person produced from ISI’s custody on Supreme Court’s intervention who was declared a traitor. It turned out that he was running an affair with the ISI Brigadier who called him for dinner. Little did the poor guy know that he would end up in Attock Fort. The case of an ISI major beating an old grand dad (ex Army) on a petty children schuffle is also well publicised. The list goes on. We must not forget that society needs to see the culprits successfully prosecuted to learn a lesson. If this extra judicial killing spree continues I bet you the survivors would want to avenge it from the system and hence the vicious cycle will never end. Also this will lead to society compartmentalising itself in smaller groups to protect themseleves from these rogue agencies. This has gone on far too long, If the government needs more resources to equip its agencies to gather crdible intel-then be it. But this savagery muct end

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  • khzaft
    Feb 8, 2012 - 3:13AM

    @iman ali:
    can’t be so conclusive on the bases of ‘factsheet’ provided by ISI.

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  • IndianDude
    Feb 8, 2012 - 3:46AM

    If the ISI and pak army is so goody goody in eliminating terrorists.Jamaatud Dawa (JuD) chief Hafiz Mohammad Saeed is a terrorist declared by the UN, i.e. the entire world. How come he keeps holding rallies in lahore, give interview on tv and even meet with intelligence official?

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  • Mirza
    Feb 8, 2012 - 3:58AM

    The problem is none of these terrorists is ever tried in a court of law. Even if tried like Qadri they are not put to death. Why would the army (who is convinced these are dangerous terrorists) not provide those same proofs to the courts? The end does not justify the means. Two wrongs do not make one right.

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  • rashid khan
    Feb 8, 2012 - 4:44AM

    What’s your point Ejaz? You want Pakistani justice to correspond the quality seen in the developed world yet you are fully aware that your law enforement and prosecution apparatus is outdated and incapable of complimenting such a demand.
    I feel sorry for people who seek justice in such situations and I envy journalists who always have a juicy tale available to file in at a short notice and met their weekly quota.
    You are fully aware of how the system works. Especially, in absence of a witness protection program per se the lynch pin for supporting witnesses in such life threatening cases. Do you honestly believe you’ll get a conviction in any court of law against well organised networkds and individuals under these conditions? When was the last time you counted how many of the policemen who participated in the Karachi opertions in 1990′s are still alive?
    Courts can only give rulings on the evidence presented before them?
    Drastic situations demand drastic actions. You have to take your pick its either having individuals walking doing street commiting brazen atrocities against citizens and public property without a fear in the world because they are confident they will never be prosecuted under the present conditions or accept such acts when committed in good faith.
    Which of the two is the lesser evil?

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  • Thinktank
    Feb 8, 2012 - 6:45AM

    Does Kashmir fall in same category?
    Act = send terrorists to neighboring country to kill innocent people
    Result= Kashmiris get their freedom

    Excused?

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  • Salahuddin
    Feb 8, 2012 - 8:26AM

    Can’t they set them free and keep a close watch until they get circumstantial evidence to try them again? Meanwhile, loop holes in current legal frame work should also be removed through legislation. Extra Judicial killings should be avoided at any cost becuase its like giving “absolute powers” to the “Men in Black” which leads to chaos and corruption.

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  • Akhtar
    Feb 8, 2012 - 9:12AM

    How come Ijaz is attempting to take on the Army? Strange!
    This is only the second time, I guess. The first one was the open letter to the Army Chief!

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  • Tahir
    Feb 8, 2012 - 11:00AM

    Our legal system is to blame here as well. A guy in my neighborhood brutally killed his own brother in front of 5-6 people and everyone knows it. Yet it took 3 years for the lower court to convict him, and of course right now the case is in the high court. If our legal system cannot convict such a clear cut case then I frankly do not expect our courts to ever convict a terrorist. Our courts cannot even ask the source of 60 million from a man for 15 years now. May be it is his “hard earned” money but please people need results.

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  • Mahesh
    Feb 8, 2012 - 11:43AM

    We have known; have been prone; have been wronged and have been droned under an identical principle called the “Law of Necessity”
    So what’s new?

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  • Rehan Khan
    Feb 8, 2012 - 12:11PM

    I would strongly second Iman Ali and Rashid Khan.
    Difficult situations need difficult solutions. Once you operate a terminally ill cancerous tissue, you don’t count the healthy cells getting removed in the process.

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  • mfg hUSAAIN
    Feb 8, 2012 - 12:59PM

    Simple.
    Use the threats as conclusive proof that they are terrorists.

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  • uzeepert
    Feb 8, 2012 - 1:46PM

    listen to this one sir Ejaz, you catch a guy in a raid on a terrorist hideout in swat. you dont need no other evidence to confrm that he is a terrorist once you’ve caught him fighting against you red handed. Now you keep the guy in custody for some days, inquire and confirm that he is associated to terrorists and then you hand him over to the local civilian law enforcements. Guess what! after a month the guy turns up knocking at your military camp asking for his Kalashnikov(AK-47) that you had confiscated from him. He’d been “Ba-izzat-Barii-ed” from the courts !! sounds Justice isnt?? and this is just one incidence sir, i repeat Just one incidence !! Justice in Pakistan you talk of !!

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  • KKGnation
    Feb 8, 2012 - 2:33PM

    off with their heads i say!

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  • Nadir
    Feb 8, 2012 - 3:08PM

    Everyone here mocking the justice systems, and encouraging the intteligence agencies behaviour should stop to consider that if tomorrow, they, there friends or family members are accused of “terrorism” or “anti-state activities” and made to “disappear” and you have no court to appeal to or recieve any information about them, how would you feel? This carte blance that everyone is happy to give the military, that if they accuse someone of terrorism or militancy then that person is definetly guilty is unconstitutional to begin with, and ethically suspect. If the laws are weak then why not lobby for the laws to change? If the courts arnt functioning then why not call for their reform? If the police are not investigating properly then why not call for proper training and resources to do their job? No its easier just to accuse someone and feel comfortable that they are definetly guilty because that way we can feel that we are making some progress. This is exactly how ISAF/NATO behaves in Afghanistan and that behaviour we are quick to condemn,

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  • Feb 8, 2012 - 5:22PM

    Reading this well placed and judicious article I am convinced that in Pakistan the army is above law. In spite of two courts have found them not guilty the Army report insists and finally concludes that all 11 were hard core terrorists and deserved death. I army is the judge jury and the prosecutes then why have all these courts etc? One of the reasons why the world laughs.

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  • Amir
    Feb 8, 2012 - 5:22PM

    @Akhtar
    I think you have only started reading newspapers after the launch of Express Tribune! You should look at Ejaz (not Ijaz) Haider’s writings for The Friday Times and other publications.
    Also, the open letter was addressed to DG ISI, not the army chief!

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  • Malik Rashid
    Feb 8, 2012 - 5:43PM

    Intelligence agencies failed in getting them convicted but they claim these are terrorists for sure. Who carries the blame for the failure in collecting evidence, for botched investigation? Are the intelligence agencies acting high-handedly against citizens? Cases of missing persons, abduction and dumping of bodies in Baluchistan, lately a bogus memogate fabrication; the agencies are ruling Pakistan with impunity. Military bosses back them fully. The judiciary has been helpless so far. Should the judges try to tackle this problem? We know that law is not supreme in Pakistan but it should rule if the state must survive.

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  • Feb 8, 2012 - 6:52PM

    If Pakistanis truly desire processes of justice that are more difficult to corrupt they should put more emphasis on the proper collection, custody, and analysis of forensic evidence. I don’t doubt that police commanders know this. I imagine that the honest ones are starved for funds and equipment by dishonest bosses while the dishonest ones simply rake off monies meant for forensics. Above all police are the “agencies” which suppress or destroy evidence at their convenience.

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  • Mahesh
    Feb 9, 2012 - 9:58AM

    @Rehan Khan:
    So drones that kill innocent people while taking out targets are acceptable to you?

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  • Priyanka
    Feb 9, 2012 - 7:31PM

    Terrorists die in the custody of the agencies and you’re the first to report it. What about the innocent people that die/get raped/tortured in the hands of the police? Its disgusting how everyone is first to raise a finger at the only two running institutions in the country that are worth commending, and fail to take into consideration the state of the government, judiciary, and bureaucrats. Blame the ones who have lead us to use unconstitutional means to bring justice to the families of those who were killed at the hands of the people you are so passionately speaking out for. When the judiciary stops being such a redundant institution and learns to do its job, then maybe your article with hold any weight. I believe its the judicial system (or lack there of ) that is to blame here Mr Haider.

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