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.