Survival in the jungle

Legal eye

What is common in social media activists being abducted and then attacked in absentia for being unpatriotic and anti-Islam and the government’s bull-headed belief that military courts are a great innovation that must be preserved? The message that Pakistan’s allegiance to rule of law and our right to liberty are contingent upon the whims of powerful individuals and institutions who claim exclusive right to determine the state’s narrative.

Rule of law is the idea that no one in a polity is omnipotent and that citizens are to be governed in accordance with declared laws and not arbitrary impulses of individuals and institutions running the state in the name of citizens. Implicit in this is the notion that state officials have limited powers that are subject to checks and balances to prevent their abuse. The constitution is the contract between the citizen and the state, and through it citizens delegate their collective power to state officials to exercise it within limits prescribed by law.

Whether it is imposition of martial law or enforced disappearances (the polite name for abduction of citizens), both are motivated by an amorphous definition of national security and national interest. And the underlying sense of entitlement is also the same ie that some institutions are holy cows and folks within them ought not to be questioned when they claim to act in the larger national interest, even when their actions flagrantly breach the constitution and the fundamental rights of citizens that it seeks to guarantee.

As the missing persons’ phenomenon snowballed we were told that it is born out of necessity. Vile enemies of Pakistan are getting away with terror and treason because our courts are timid and our legal regime doesn’t authorise agencies to collect intelligence or recognise evidence gathered by them. That intelligence and law-enforcement agencies (and the army acting in aid of civil power) wish to work within the criminal justice system but the system needs tweaking to adjust to the ‘ground realities’ so that our enemies can be apprehended and punished.

After much mulling our civil and military institutions came to the precious conclusion that adulterating our legal regime to eliminate as much as possible the distinction between the accused and the guilty was the way to go. As a consequence, the Actions (in Aid of Civil Power) Regulations for Fata and Pata was born, and subsequently we saw the Anti-Terror Act, Fair Trial Act and Protection of Pakistan Act (now lapsed). With these instruments the state created all possible flexibility within the law to allow its functionaries to act on their whims.

This was the learning-to-work-within-the-criminal-justice-system phase of our recent history. It was brief. While it was evolving, the tools to deal with ‘ground realities’ didn’t exist. As national interest couldn’t be jeopardised, so people kept going missing. Just when we thought we had finally empowered our institutions and agencies to catch our enemies and have them punished within the confines of the law, APS happened. In that state of shock and anger we were told that this criminal justice business doesn’t work. In wartime we need military courts.

In the two years that military courts were functioning and handing out death sentences, we didn’t get a sense that terrorists were now so scared of being hanged that they were refusing to blow themselves up. But more importantly, despite all power vested in intelligence and law-enforcement agencies by the new and revised laws, and the absolute power vested in military courts, people still kept going missing. What explains this conundrum? Was the original diagnosis wrong? Was it never about inadequate laws?

What is the real appeal of military courts? That they are effective and efficient? That military officers working as judges and prosecutors are not exposed and so not afraid? That cases are decided on time and the decisions are executed on time? Forget the structural problems with these courts with the military acting as police, investigator, judge and executioner. Does anyone know what kind of evidence is presented that leads to convictions? Are any witnesses presented? Are they cross-examined? Are the accused advised and defended by counsel?

The real appeal of military courts is that they don’t have to give reasons for what they do. The trials are not public and the rulings are not subject to scrutiny. No one hears the stories of the accused or why they did what they did. The decisions lead to no debate about right or wrong or whether these courts are striking the right balance between safety and efficiency while awarding death to citizens. They allow everyone not to address thorny moral and policy issues: undisturbed sources of extremism within society that support the supply-chain of terror.

While military courts are wrapped in a shroud of legality, being creatures of law, the arguments in favour of these courts and those in defence of abductions (presenting them as a necessity) are very similar. Both sets of arguments stem from the belief that the fundamental rights of citizens are not inalienable and can be disregarded in the face of challenges such as the terror we are confronted with. Both are rooted in a moral code that justifies usurping the right to life and liberty of a citizen declared to be anti-state without due process in the ‘larger public interest’.

Both rely on the assumption that the state functionaries who are making life and death decisions about fellow citizens in the name of the state are endowed with divine attributes and need not be subjected to any checks and balances while they play God. Both are backed by the firm conviction that human liberty is not a fundamental right, but an entitlement or luxury that can be taken away if you say or do something that pushes you to the wrong side of incumbent state officials who believe themselves to be the state.

In the jungle there is no legal or moral code. The rule is: ‘survival of the fittest’. And to survive you make the right alliances and try not to fall on the wrong side of anyone more powerful. You don’t take unnecessary chances and risks and you don’t fight others’ fights to establish principles. How does an animal know whom to fight and whom not to in a jungle? Recognition of the pecking order is part of socialisation. And if you don’t respect the order, you become the example that helps the socialisation of others.

We are not a rule of law society. We are living in the jungle and have made our peace with it. Salman Haider wasn’t a household name last week. Most of us hadn’t heard of the other social media activists now missing. But we know about them now as examples we don’t want to be. We don’t know what they did, but we know they probably did something to upset those who determine what is in our interest as a nation and what isn’t. As our national interest monitors can’t falter, many are already attacking the abductees without any knowledge of the underlying facts.

What message has the abduction of social media activists sent, other than reinforcing the pecking order? Those of us who thought we could think and express ourselves freely within the digital world from the privacy of our homes were wrong. This was a public service announcement that the digital world is part of the jungle too. So don’t be a rabble-rouser on social media. The state retains monopoly over narratives and if social media is the new forum where narratives are being shaped, it will be controlled no less ruthlessly than other forums.

The abductions look like coercion for now. But they will lead to a conformist consensus in favour of keeping freedom of expression and dissent under self-censorship even on social media. Who says that isn’t essential service to the larger national interest?

Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.