In the last 7 years Pakistan has been constantly under terrorism related violent attacks and there has been widespread anarchy. All aspects of the society, including the criminal justice system are stretched to their limit.
In the post-election scenario, fighting terrorism will be one of the biggest challenges faced by the new governments, both federal and provincial. Two views seem to emerge on how to best fight terrorism. There is the “lets talk it out with them” approach, which has been tried in the past and is likely to be the choice of the new government. Then there is the suggestion from some quarters that the most dangerous terrorists need not reach the court and are instead killed in a drone, ‘disappeared’ or ‘encountered’. This also represents the present modus operandi of the security establishment. These divergent views also represent the broad spectrum of counter-terrorism debate in the west.
The former view, which I will call the “conciliatory approach”, treats terrorism as a type of criminal activity that can be fought within the rule of law and the human rights framework. The proponents argue that repression and injustice act as a recruiting sergeant to the extremist fringe and marginalize those whose support is vital to effectively fight the terrorist threat. They also undermine the values that separate us from the terrorist, the very values we should be fighting to protect. Finally, the act of curtailing civil liberties bring us closer to anarchy not far.
History tells us that the immediate response of almost all democratic governments to major terrorist attacks is to give greater powers to law enforcement agencies. These actions are dictated by panic and are more akin to a knee-jerk-reaction. This has happened in the past, and some say will continue to happen in the future. The clearest example from the recent past is that of Nazi Germany, one of the most repressive regimes in modern history, which was established in a hysterical response to the Reichstag fire (arson attack on the Parliament). This approach to counter terrorism is also known as the “war model” and has been invoked by United States and Great Britain in their so-called “war on terrorism” post 9/11 attacks. In such a scenario all but few civil liberties can be revoked by the State. Invariably, once fear subsides, there is judicial action, which counteracts against the abuses of the executive. The downside to this approach is that in a conventional war you know who your enemy is and where to find its forces. To win the war you need to figure out when and how best to attack. This is not the case with the type of terrorism we face, where the central problem is to figuring out who the enemy is and where they are.
However there is a third way of thinking about terrorism and how to respond to it. Since technological developments have made it increasingly easy for small groups or individuals to cause devastation, the only way to counter this threat is to increase the ability of government to monitor and investigate individual behavior. However the erosion of civil liberties should be subject to safeguards. Dysfunctional though it may be; success in defeating terrorism is dependent on a criminal justice system that has some semblance of due process.
Any changes to the law and powers of the law enforcement personal fighting terrorism should be formulated based on recommendations by a commission composed of constitutional experts, parliamentarians, and law-enforcement experts. I would be way out of my depth to try to anticipate what such a commission would or should come up with. But in broad terms the solution will involve a balance between effective counter-terrorist operations while preserving the spirit of our constitutional rights.
The arbitrary use and abuse of government powers can be checked by creating alternate institutions within the government to monitor and balance the actions of other arms of the government. If effective defense against terrorism requires, suspensions of habeas corpus, secret searches – as has been happening – then these actions should be subject to monitoring by the independent judicial bodies. The idea is to try to limit executive powers that may be subject to abuse by creating institutions and judicial procedures to monitor their application. Including power to conduct audits and make such audits available to the public.
Legal changes that will restrict civil rights are inevitable given the dilemmas posed by terrorism. We cannot, however, allow abuses to take place all in the name of greater national exigency.
Writer is a Barrister-at-law and can be reached at firstname.lastname@example.org