For the revival of the state’s authority

Notwithstanding need to improve laws, it’s not legislation that's failing; implementation is the focal challenge.

Chaudhry Fawad Hussain July 22, 2014

Legislation on terrorism is one of the major challenges of modern jurisprudence. Political and legal scientists are struggling to find the balance where terrorists can be taken to task without lowering the standards of modern human rights. This challenge is widespread with First World countries like the US and the UK as well as countries like Pakistan, India and Sri Lanka, struggling to find a viable mode to try high-profile terrorists. A superpower like the US had to establish an illegal prison outside its territorial jurisdiction where high-profile terrorists are detained so as to defeat the civilised justice system that cares for human rights more than punishment for terrorists.

Contrary to First World issues, Third World problems are more gigantic, with the justice system not always able to ensure human rights as much as in advanced countries. The capacity of investigation and ensuring security of the people involved in the process of capturing and punishing terrorists is a much bigger issue here. In Pakistan’s case, the state has receded its authority in favour of armed groups in a very elusive manner. Pakistan’s defence doctrines, the ‘bleed India policy’ and the ‘strategic depth doctrine’, created an anomaly that is in direct conflict with Max Weber’s theory of ‘monopoly over violence’. Weber claims that the state is any “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”; this means that in a given territory, besides the state, no authority is sanctioned or endorsed to use force. However, the abovementioned military doctrines are in negation of Weber’s theory, allowing and encouraging private militias to use violence. Initially, these militias were supposedly armed to fight for the country’s interests in territories beyond Pakistan’s territorial limits, however, as happens in the case of mercenary groups, they ultimately come back to haunt their own creators and this is a primary lesson we discover in the writings of noted political philosophers like Chanakya and Niccolo Machiavelli.

Once the state receded its power to specific private militias, the process of recession took over and the state lost its control. We witnessed the emergence of mafias in every political and religious outfit. Every mafia has a different motivation and mode of influence. Political incompetence added to the problem and now we see violent armed groups in every nook and corner of the country, with a low-intensity civil war already gripping Pakistan. If this recession is not halted, Pakistan will be faced with a high-scale civil war. Mere legislation is not adequate to tackle the problem of terrorism.

The Pakistani state is under threat and both the civil and military leadership must seriously analyse the situation. Since the departure of General (retd) Ashfaq Parvez Kayani and the taking over by General Raheel Sharif, the army’s resolve against terrorism is much more evident. The operation in North Waziristan is a step in the right direction but this action per se is insufficient. The civil government and the army seem to be emphasising the elimination of terrorism, but in the long run, the solution lies in rooting out extremism. In the year since the Nawaz government took over, we do not see any real step to cure the menace of extremism. In fact, we see the influence of clerics increasing with every passing day and nothing is under consideration to improve the syllabus of those madrassas that have become epicentres of terrorism. Numerous papers and studies are available that narrate the steps the government can initiate to tackle extremism and I may be only repeating what has already been written on the subject, therefore, I shall limit myself to the problem of renaissance of the state authority.

The Pakistani state is grappling with the issue of the revival of state authority; however, the government’s strategy is deeply flawed. The Parliament has just added another act where dozens already exist with regard to anti-terrorism legislation. The Protection of Pakistan Act has come under severe criticism by organisations such as the ICJ as being inconsistent with human rights standards. The Parliament is missing the point here: notwithstanding the need to improve laws, it’s not the legislation that is failing; it’s the area of implementation that constitutes the focal challenge. Authorities responsible for implementing the legislation — the agencies and the judiciary — both suffer from paranoia. To quote two examples, in 1993, on the orders of the civilian government, the Karachi police initiated an action against a political party of the city. The operation went on for months, with the party alleging that the police and Rangers carried out mass murders. After a few years, with the change of government, the tables were turned. Each and every police officer, who played an active role in the said operation, was killed by ‘unidentified’ people. The state did not even bother to stand by its own force(s) and abandoned the policemen involved in the operation. The second example is even more explicit. In 2007, a cleric, Maulana Abdul Aziz, who was drawing pay from the Capital Development Authority as an imam of one of its mosques, issued a decree that “no Pakistan Army officer could be given an Islamic burial if died fighting the Taliban”. This was followed by a full-fledged campaign to take over the federal capital. Public pressure mounted and the government ordered the military to clear the mosque and adjoining madrassa. Again there was a change in government and the former president and army officers involved in the operation are now facing a criminal trial for saving the capital. There are hundreds of such incidents where the state has failed to respond and protect its authority. The judicial organ of the government is in turmoil as the structure of the judiciary stands upon nepotism. Until we restructure the judiciary as a merit-based institution, one cannot ascribe real decision-making to judiciary.

In my view, the prime minister, the army chief and their core teams must put their thinking caps on and decide on a modus operandi for the revival of state authority, make armed groups surrender their arms, and not allow them to establish parallel courts. Security agencies and the police station need to be strengthened on an urgent basis. We also need to bring sanity back to our syllabi, with our mosques and madrassas working under the gaze of state authorities. These steps are easier said than done, but we clearly do not have any other option but to implement them.

Published in The Express Tribune, July 23rd, 2014.

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