Right to life is the foundational human right that is meant to be inviolable. It is hard to quarrel with this straightforward principle. Except of course till you are confronted with Malik Ishaqs in a state and society as bigoted and with a criminal justice system as feeble as ours. Notwithstanding one’s moral position on whether it is ever justified for the state to take life and through what process, it is hard to dispute that the world is a better place in the absence of some people. Pakistan is a safer place without Malik Ishaq.

We are told that Ishaq, his sons and deputies were being held under the Maintenance of Public Order Ordinance. And while in ‘protective custody’ they were being transported to affect ‘recovery’ of arms from a place identified by them. Remember this is the man whose cases were held up because police found it hard to make security arrangements to take him to courts. But here he was taken out for arms recovery and during such outing his comrades tried to get him released and he, his sons and deputies got killed in crossfire.

This is a man who could threaten judges in open court, whom public prosecutors avoided like the plague and against whom no one who wished to stay alive could record evidence. This is the man whose family was on a stipend while he was in jail, who was reportedly brought in to negotiate with terrorists who had taken the GHQ hostage, and with whom the government made pacts to wean him off his desire to kill in the name of religion. And now we are told that a lowly police party took him out for a ride and got him killed inadvertently.

But then what else can the state say? The man confessed killing over 100 Shias, said he would rather die than stop preaching hate, continued planning terror attacks while in jail or let loose or in protective custody. Could the state come clean and say that as architects of Operation Zarb-e-Azb have now decided to extinguish terrorists of all hues and as it was impossible

to ‘neutralise’ Ishaq through due process, it was decided at the highest level that he would need to be taken out?

Ishaq is gone. Good riddance. He lived by the sword and died a violent death. While he didn’t get due process, in today’s Pakistan he creates a moral dilemma for conscientious realists who wish the state to abide by rule of law but also want the criminal justice system to be a deterrent for terrorists. Why? Because due process in our polity has become a moral hazard that seems to encourage crime and helps criminals go scot-free. So should one suspend moral judgement as the state excludes judges and trials from the system dealing with our Ishaqs?

Should one support a transient arrangement such as military courts so that we can all pretend that due process is being followed and sleep better at night? Should one support a tilt in the balance between safety and efficiency of an ideal justice system in favour of efficiency and relax the standard of proof to help our civilian justice system extinguish terrorists in view of the challenges we face? Or should one let our Ishaqs run amok and keep perpetrating violence till such time that the state puts in place a functional justice system?

No one is born a terrorist. A state must never opt for a definition of justice that resembles an-eye-for-an-eye style revenge. Forming lists of terrorists to be executed and then executing them outside of legal process creates an arbitrary and unsafe system as predecessors of the same folks who are creating lists of liabilities to be extinguished created lists of assets to be nurtured and most of today’s liabilities were yesterday’s assets. And what is the point of ‘recalling’ malfunctioning end products when their assembly lines are still in place.

These are all valid concerns. The question of how our polity creates and strengthens Ishaqs to become larger than state institutions needs attention. Leaving aside the question of legality or morality of tactical means chosen to fight sectarianism, the Punjab government under Shahbaz Sharif exhibited the resolve to fight this menace during its 1997-99 tenure as well. So what accounted for the hands-off strategy from 2008 till this past week? Civilian regimes can’t stir up a hornets’ nest without being backed fully by the khakis.

The death of Ishaq and his sons is significant because it appears to be part of the National Action Plan’s implementation. The time before General Raheel Sharif assumed the army’s command was different. Khaki leadership kept speaking about pacts with militants except when a fight was forced upon it. There was no clarity that to defeat terror, terrorists will need to be fought and not appeased. There was no step-wise strategy of starting out at the peripheries where terrorists were strongest and moving toward the centre. There was no vision that terror is anti-state even when its perpetrators attack citizens and not the state.

The Malik Ishaq incident, in the aftermath of the Rangers operation in Karachi and the military operations in Fata and Balochistan, suggests that the definition of anti-state is evolving: any non-state actor who uses or threatens to use violence against the state or its citizens is now anti-state and is to be penalised. What is probably still missing in this vision is the next logical step of neutralising armed non-state groups that don’t presently threaten citizens or the state but have the ability and paraphernalia to do so should a disagreement with the state emerge in future.

It is confusion over what one part of the state might consider anti-state or illegal and another doesn’t that creates confusion and sanctuaries for our Malik Ishaqs to prosper and overawe the writ of the state (or at least that of its civilian arm). The Ishaq encounter has now shown that the Lashker-e-Jhangvi is fair game for law-enforcement agencies across Pakistan. But what about the Lashkar-e-Taiba or Jaish-e-Mohammad? Are they still kosher? When Zakiur Rehman Lakhvi is presented in courts, should judges see him as an asset or liability?

None of this is meant to take credit away from the present military high command for the substantial results it has produced in the fight against terror since Zarb-e-Azb, by literally pulling Pakistan back from the precipice of anarchy. But by the same logic (ie power and responsibility go hand-in-hand) khakis need to accept responsibility for the emergence and proliferation of terror sanctuaries in the first place, revise policies that made non-state actors extensions of our national security policy and ensure that such regressive thinking doesn’t return notwithstanding the state of our relations with India.

But while we debate the causes of raging fires, dousing it needs our immediate attention. And if they cannot be put out according to the book should we leave them raging? The US Supreme Court didn’t touch the issue of internment of Japanese Americans till well after World War II. It also didn’t rule on rights issues emerging out of US administration’s approach to fighting terror in the immediate aftermath of 9/11.

That we need a functional justice system and our ministers, generals and judges waking up to the need is a no-brainer. But in the meanwhile, the choice seems to be between two bad ones: compromising the fairness of a justice system by creating military courts to justify persecution of suspected terrorists; or treating them outside of a justice system that just looks away in recognition of its own inadequacy amid extraordinary circumstances.

The writer is a lawyer based in Islamabad.

Email: [email protected]



