The counter-terrorism puzzle

The question for our generation: How do we counter extremism and militancy?

The soul of a generation is frequently linked – interminably – to a singular question that is thrust upon its people. A question, an issue, that defines the character of its ethos, for which it will forever be judged in the annals of history. In Pakistan, for instance, the generation of the 1940s and 1950s will be judged on the question of, ‘How do you create a nation state’? In the 1960s and 1970s, the issue was, ‘How do we entrench Constitutional freedoms?’ The 1980s and 1990s were about ‘How do we sustain a democracy’? And, for our generation, the quintessential question – one that we will ultimately have to answer – is ‘how do we counter extremism and militancy in our society’?

Unless we ‘fix’ the issue of terrorism, reforms in all other areas will, for the most part, remain ineffective. Regardless of a liberal investment regime, how could Pakistan attract foreign capital till such time that our cities and streets remain an incubator of violence? How can the constitutional right to education, under Article 25A, be fulfilled till such time that schools are being blown up? How can the project of access to justice succeed when judges, prosecutors and witnesses fear for their life during and after trial?

So, what does a comprehensive and deliberate strategy for countering extremism entail? The answer – elusive and complicated – incorporates some discussion of reforming our police and intelligence structure, better monitoring of financial transactions and funding procedures, creation of economic opportunities, eradication of unemployment, and stretches into the esoteric reaches of creating a tolerant society through expansion of liberal education.

But alongside these ‘longer-term’ measures of eradicating extremism from our society, there is an urgent and imminent need of introducing a new comprehensive counter-terrorism law that ‘makes sense’ – one that results in meaningful convictions based on modern standards of evidence, without offending the fabric of constitutional due process of law.

There are two disparate narratives on how a counter-terrorism law can be drafted. One, emanating from the security junta (including the civilian law enforcement, as well as the intelligentsia) argues that the counter-terrorism regime should grant ‘wider’ powers, in terms of arrest and interrogation, and should allow terrorist suspects to be convicted on circumstantial (minimal?) evidence. Their argument, stemming from a claim that they understand the ‘realities’ of counter-terrorism and policing better than anyone else, and promises that only in this way can we rid our society of the savage terrorists, who live outside the gates of law and humanity, and frequently escape through the clutches of a weak legislation (and even weaker implementation of it).

Their final (knock-out) punch rests in their assertion that the due-process of law and modalities of our criminal justice system have to be subservient to the project and cause of ‘saving lives’ through conviction of suspected terrorists.

The second narrative, voiced by the legal (and judicial) fraternity and human rights’ champions, argues the romantic ideal that the strength and character of a nation is tested in the way that it applies constitutional protections and the law to the most squalid of its members. That scourge of terrorism, despite its barbarianism, must not compel us to twist the constitutional freedoms and violate principles of natural justice. That an accused, irrespective of the savagery associated with him, must be afforded the full spectrum of procedural protections and substantive defences available under the criminal justice system. That (illegal) confinement and (torturous) interrogation techniques are unbefitting our constitutional ethos. And that only in this way, can we be ‘different’ (better!) than the terrorists themselves. That unlike them, we follow the letter and spirit of law, even if it leads to conclusions that offend our human instinct to dispense summary justice.

Between these two narratives lies somewhere the answer to the counter-terrorism puzzle. And finding that balance – where the desire to rid evil through our brute force is balanced against the compulsions of doing ‘justice’ according to our compassionate humanity – entails confronting ourselves, in a moment of human honesty, and choosing who we want to be as a nation.

Methodically, this endeavour requires a careful and deliberate division of responsibilities: The law enforcement personnel have to come forth (not as individuals, but as an institution) to lay out their difficulties and requirements in terms of being able to counter terrorism. Based on their practical and institutional experience, they must present with a list of challenges that they face in conducting investigation, gathering evidence, and putting terrorist suspects on trial. The baton must then be handed over to members of the legal fraternity, who must put their heads together to draft provisions of law that address all requirements of the law enforcement agencies, within the ambit and purview of constitutional protections and principles of justice. In so doing, the legal fraternity must be mindful that the greatest challenge of all previous counter-terrorism regimes has been a lack of conviction (based on ‘insufficient’ evidence).

Addressing this issue, above all, shall be the challenge that must be met through the drafting of a new law. At this stage, with a working draft of the new law, the baton is passed over the to politicians and the media, develop political consensus around it, and to ‘sell’ this new law to the people and constituents, who are, in our constitutional dispensation, the final custodians of democratic power.

Sadly, for now, a comprehensive process of this nature has not been undertaken. It seems that everyone – from police personnel to lawyers to politicians to media – has an opinion on bits and pieces of what counter-terrorism should entail. And frequently, such piecemeal ideas (including exploring of witness protection programme, transferring of cases to different geographical locations, extending the time for investigation), find themselves as amendments to the existing law. However, no one – without any exception – has put forth a comprehensive philosophy for countering terrorism.

Truth be told: this, above all, is a colossal failure on the part of our law enforcement agencies (especially the police), and on the part of lawyers (especially those who have spent a lifetime in prosecutorial services). It is appalling that despite having spent decades in their respective professions, senior police officers and prosecution lawyers are still struggling to reach even the most basic consensus on what are the impediments and pitfalls in our counter-terrorism paradigm.

When will we wake up from this criminal slumber of apathy and incompetence? When will our lacerated conscience bleed a solution? How much blood will have to spill, how many lives lost, how many families bereft, how much hope extinguished, before confused opinions give birth to national consensus? What answer will we have in our defence – on the day that we meet our Creator – for having watched, impotently, as our nation bleeds?

Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @Ch_SaadRasool