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Invoking the wrong law

The ATA 1997 has unfortunately been invoked every single time a sitting government (not the state) feels threatened by political opponents

Invoking the wrong law
— Photo Aamir Qureshi / AFP

Heroism is a term excessively thrown around these days. The two unnecessary heroes this week are Imran Khan and Tahir-ul-Qadri. They have become heroes not by virtue of any accomplishment on their own but thanks to bad strategy by the state. Shockingly bad strategy at that.

The issuance of arrest warrants for these two gentlemen was bound to elevate their status in the eyes of their supporters. The rot started with the decision to file charges against them under the Anti-Terrorism Act, 1997 — in consequence of the destruction of property at PTV Headquarters and other government property in Islamabad. There are two reasons for the bad strategy but only one of them actually requires a bad judgment — and the government made it. I say this again. Shockingly bad strategy.

The ATA 1997 is drafted in unnecessarily broad terms. Its definition of terrorism allows any government — as we have seen in the past — to charge even political dissidents with this most serious offence. Musharraf gleefully used this law to suppress ethnic nationalists as well as lawyers opposing his dictatorial actions. A number of political parties, right from 1997 when the law came out till today, have pointed to instances of political victimisation by the abuse of this law at the hands of the executive. But the definition is only part of the story.

The decision to invoke this law always rests with the state. No matter how broad a definition of terrorism, it cannot force the state to invoke a particular law. Pakistan has never really developed a system of prosecutorial discretion — although multiple provinces are now doing commendable work to change this.

The ATA 1997 has unfortunately been invoked every single time a sitting government (not the state) feels threatened by political opponents. This has happened to target opponents in Karachi, Quetta, Lahore, Islamabad and Peshawar. This not only puts the law in a bad light but also makes the state guilty of overkill. The real terrorists threatening Pakistan have often escaped the clutches of the ATA 1997 but those opposing the government of the day on principled politics (no matter how misplaced in one’s view the principle may be) have had to bear the brunt.

The actions in Islamabad that resulted in damage to government buildings and property cannot be justified by anyone. However, regular penal code offences could have been used to achieve the same ends — if the end is punishment. But, and this is where it gets particularly interesting, the aim is not punishment. The aim is fanfare and appearing to be tough on terrorism — rather than actually being tough on terrorism. If terrorism was taken seriously by the state of Pakistan, it would have done a lot more than arresting or killing people or hauling them up before special tribunals. Actions would have focused on winning hearts and minds and not just territories. But the use of the ATA 1997 is not about terrorism — it is about consolidating political power. The only thing wrong with this strategy is this: it cannot work and is counter-productive.

Every time a government invokes the ATA 1997 to target political opponents, it makes the executive authority of the state weaker. An inflation of authority, particularly in matters of invocation of draconian laws, always backfires. Whereas earlier Khan and Qadri could have been charged with regular offences in the penal code, by even filing charges against them the government tried to portray them as ‘terrorists’. They are not that and no right minded individual will see it that way. They may be way off the mark with their political acumen and strategy (and there can be differing yet equally reasonable perspectives on this) but they are not seen as terrorists by anyone.

By invoking the ATA 1997 against Khan and Qadri, the government has made these two the latest symbols of standing up to an oppressive system and government. This was not just needless but will also be counter-productive from a political as well as a legal stand point. The worst thing is that the government has made two people heroes without any input from the newly dubbed heroes. Whoever made the call to invoke ATA 1997 against Khan and Qadri needs his good sense examined.

Apart from the issues that this raises for a sitting government, the broader issue is: what can be done to change this? Allowing well trained prosecutors professional independence is the first step. As long as panicky politicians get to make the call on which law to invoke, things will stay the same.

Why does the legislature let this law stay on the books? One answer could be that it benefits everyone vying for power — at least the Punjab based political parties. Every political party wants to retain the ability to twist the arms of political opponents if and when it is in power. Hence, the ATA 1997 allows everyone in Punjab to do this. The other potential answer is that calls to amend the law will be too costly in the current political climate. Since the Punjab based political powers benefit from this law, and are willing to bear some suffering too, the calls for change will come from outside Punjab — the provinces viewed with suspicion by the establishment. Their calls for tweaking the law on terrorism will then be seen as ‘soft’ on terror. In reality, the story is reverse. Punjab is the softest on terrorism while KPK under ANP was the toughest fighter. But in the politics of legislation, the story is reversed — maybe just with perceptions but that is all that matters.

I like to believe that most competent prosecutors will see that charging someone with terrorism is only the beginning of a complex legal process. However, there is also a politics linked to the whole exercise — in every country. When this politics is characterised by panic and an urge to target people to handle public opinion or media frenzy, it will almost always backfire.

The tragedy here is that you expect a government to already know all this and avoid such mistakes. The fact that they got this whole exercise so wrong is, yes, shocking.

Waqqas Mir

waqqas
The writer is a practicing lawyer. He can be reached at [email protected]

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