New Age Islam Edit Bureau
16 February 2016
By Haseeb Akhtar
Only Sharifs Go Home?
By Dr Farid A Malik
By Moeed Yusuf
Righting the Wrong
By Reema Omer
Compiled By New Age Islam Edit Bureau
By Haseeb Akhtar
February 16, 2016
“One person’s freedom fighter is another person’s terrorist,” is a popular statement for those interested in understanding the various perceptions of terrorism in an age dotted by groups using such techniques. In the most critical of Middle Eastern theatres, Palestine and Israel, there is a constant debate on whether terrorist techniques could be regarded as freedom fighting. The same is wondered in places like Kashmir and Afghanistan.
To be effective in counterterrorism measures, a more nuanced view must be held both by the general public and officials. An in-depth understanding of the political reasons behind terrorism tactics and how to counter the freedom fighter argument is essential in drawing lines that are then enforced. The ends of an organisation must be taken out of the picture, leaving the means that they use to reach those ends as the basis they are judged by. This takes the politicisation of whatever issue the group is for or against out of the equation, thus taking opinion out and leaving facts to be heralded.
The first step in this project is to accurately define what constitutes terrorism, both by states, organisations and individuals. According to Boaz Ganor, a leading intellectual on counterterrorism, definitions of what constitutes terror have been perverted by governments seeking to protect groups that they sponsor. This can be seen when Iran and Saudi Arabia try to exclude people fighting foreign occupation from terrorism. This seems just but again brings opinion into the equation, making it hard to counter terrorists. Ganor differentiates between guerrilla warfare and terrorism, stating that any entity, whether it is a group, state or individual, that deliberately targets civilians is committing acts of terror, while a group that engages in guerrilla warfare does so with combatants of the other side.
A clear-cut definition of terrorism is required so that the fight against entities that harm innocent civilians can be united without being split or perverted by the political goals of organisations and states. If the split is made between guerrilla warfare and terrorism in conflicts between states and organisations, it would be a momentous achievement for the fight against terror. International punishment of states that sponsor terrorism, according to the mentioned definition, would result in organisations choosing guerrilla warfare, which is more ethically acceptable than attacking civilians. The violent conflict between states and organisations would then be separated not by ends, which are perceptively malleable, but by means, which are clearly defined.
For example, attacks on military bases, such as Pathankot, would not be considered terrorism under Ganor’s definition, but rather guerrilla warfare as combatants were attacked. The Mumbai attacks, though, would be considered terrorism. Attacks on innocent civilians by India in Kashmir would be considered state terror but attacks on conflicting groups within Kashmir would be considered guerrilla warfare. This removes the politicisation of the Kashmir issue, both on the Pakistan and India sides, and seeks to protect civilians rather than the interests of combatants.
The same definition can be used to remove the politicisation of terror in the Israel-Palestine conflict. Israeli attacks on civilians in Gaza should be defined as terror and so should Hamas’ attacks on Israeli civilians. Neither Israel nor Hamas should have the audacity to define attacks on each other’s combatants as terrorism, as it is guerrilla warfare. Again, a clear definition removes the politicisation of hurting innocent civilians and ends the need to argue the morality of the goals of combatants from the desire to stop terrorism.
State terror occurs in three ways: state support of terrorism, state operation of terrorism and state perpetration of terrorism. State support occurs when states give terrorist organisations financial, ideological, military or operational assistance. States can also operate terrorism by performing terrorist attacks through outside groups. The third way, perpetrating terrorism, happens when a government’s official groups, such as the military or intelligence community, intentionally attack civilians.
When I hear questions such as “Are the Afghan Taliban terrorists?” with the White House replying “No”, I cringe at the political perversion that does not allow us to state with clarity that, yes, a group that killed innocents in an airport is most definitely a terrorist group. When any organisation that attacks civilians is supported by a state, the state should understand that it may be supporting freedom fighters or revolutionaries, but that does not change the fact that they are still terrorists.
Haseeb Akhtar is an entrepreneur working on www.aceso.care, a healthcare startup in Lahore
Only Sharifs Go Home?
By Dr Farid A Malik
February 16, 2016
In Pakistan, only ‘Sharifs’ (honourable) individuals go home and the badmaash (dishonourable) stick and flourish. It reminds me of a story from Saadi Sherazi’s famous Hikayat (moral stories). There was a habitual thief but despite several warnings he did not stop. Finally, the town’s people decided to shave his head off, blacken his face and sent him on a donkey ride across the town for all to see. It was hoped the punishment would make an impact but, on his return, he remarked he had had a fun, free head shave and donkey ride.
In order to put all speculations to rest, General Raheel Sharif, the Chief of Army Staff (COAS), has clearly indicated that he will go home on the expiry of his term in November this year. He is the first head of the armed forces after General Waheed Kakar who will complete his constitutional time limit. General Jehangir Karamat was sacked by Prime Minister (PM) Sharif while General Pervez Musharraf captured PM Sharif and became the head of state himself. General Pervez Kayani stayed for six years before handing over command.
In Quaid’s Pakistan, Sharafat (honour) was clearly defined and understood while in Abba Ji’s, it is deliberately confused. Quaid and his followers defended their honour at all costs. Ulema (finger pointing) was taken very seriously. Conflict of interest was avoided. Politics meant service to the people, not loot and plunder of their assets. They believed in giving not taking. Even tea was not served in cabinet meetings.
By contrast, Abba Ji believed that every person has a price: find it, pay it and get your job done. Honour, ethics, morality, rules and regulations are considered irrelevant; only the bottom line was important. The term mukmukka was introduced and practiced. It was rumoured that General Asif Nawaz Janjua was invited to dinner and then offered a BMW car as a gift. Upon his refusal their relationship was strained. When Ishaq Khan dismissed the government of Mian Sahib, he alleged that the general had been poisoned.
Unfortunately, in our times, honour has been linked with weakness as odds are very unfavourable. Honourable individuals quietly go home to protect their reputation or Sharafat instead of fighting back the evil. At the time of independence in 1947 the country was in the safe hands of very able and honest individuals who, despite challenges, performed to the best of their abilities. There was merit and rule of law. The evil component of society was contained while today it has managed to come to the top.
Abdul Hafiz Kardar, the person who brought Pakistan on the world cricket map, did not assist his best friend and cycle companion to be selected in the team against merit. Then, as education minister of Punjab, he lived in his own rented apartment and used his personal car to go to the office. After the election debacle of 1977 he advised Zulfikar Ali Bhutto to immediately go for re-elections. When Bhutto did not follow his advice he resigned and went home with his honour intact. There were no cases or charges of corruption against him.
Recently, SahibzadaYakub Ali Khan passed away at the age of 95. In 1971, as head of the eastern command in East Pakistan he refused military action and advised the GHQ to seek a political solution. He was stripped off his rank and called back to be replaced by General Tikka Khan and then General A K Niazi. Quaid’s Pakistan was dismembered as a result of this military adventurism. Again, in the 1980s, he wanted a total solution to the Afghan war with the return of refugees and formation of a consensus government in Kabul to avoid chaos. In utter short sightedness he was removed as foreign minister. People like him laid the foundations of this country that have been weakened by the unscrupulous leadership imposed on the nation.
Operation Zarb-e-Azab is perhaps the most important front on which the nation has embarked under the able and honest leadership of General Raheel Sharif. The Pakistan army has produced both villains (Ayub Khan, Yahya Khan, Ziaul Haq, Pervez Musharraf) and heroes (Aziz Bhatti, Shabir Sharif, AsifJanjua, Waheed Kakar, JehangirKaramat etc.). In the 1965 war, it is widely believed that it was the change of command (General Akhtar to GeneralYahya) that prevented the capture of Jammu. In the US, a wartime president has never lost an election as he is the commander-in-chief. Franklin D Roosevelt was paralysed yet he was given a third term to finish what he had started. Finally, when he died in office, his Vice President Harry Truman took over.
After a long time the khakis are being led by a general who respects the Constitution even more than its custodians. Originally, the term of COAS was four years, which was then reduced to three. Perhaps the best way forward is to withdraw this amendment and let the chief finish the task that he has courageously embarked upon. His brother, Major Shabbir Sharif, was a fighter who laid down his life for his motherland and so did his uncle, Major Aziz Bhatti. For Sipah Sharif’s to go home without accomplishing their task will be a setback for the people who believe that Sharafat is strength, not weakness, as it has turned out to be in Abba Ji’s Pakistan.
Dr Farid A Malik is ex-chairman Pakistan Science Foundation
By Moeed Yusuf
February 16th, 2016
THAT Pakistan has thus far managed to steer clear of the fires in the Middle East is no less than a miracle.
The Pakistani government dodged the Saudi request for direct involvement in Yemen last year. But this pressure will sustain. The reason is simple: there is no other Muslim country that has deep links with key Arab regimes and can be coerced to lend an army actually worth its salt.
Quite apart from the Saudi demand, Pakistan also risks being burnt if the principal beneficiaries of the chaos in the Middle East — the militant Islamic State group and its affiliates — extend their reach into South Asia proper. They are already operating in Afghanistan and beginning to do so in Pakistan.
This is hardly surprising: after all, they have old connections here from the time they were part of Al Qaeda; they espouse a sectarian agenda that appeals to Sunni extremist outfits in Pakistan; and any number of militant groups out of favour and under attack from the Pakistani state are in desperate need of a patron that Al Qaeda no longer is.
Pakistan must avoid getting sucked into this mess.
Pakistan must avoid getting sucked into this mess. The starting point for this has to be the recognition that Islamabad’s traditional pro-Arab policy has been overtaken by events.
Iran has made a diplomatic comeback. And since Iran isn’t a regime — it’s a real state with real institutions and a controlled but functioning democracy — it has a greater chance of cashing in on this opportunity to alter the balance of power in the region. Meanwhile, the Saudi-led coalition seems insistent on ignoring the single-most obvious lesson from the post-9/11 wars: use of kinetic force, especially in foreign territory, has not and cannot defeat the kind of non-state actors/dissidents fighting discredited, misgoverned Muslim states.
The present Saudi force-heavy strategy won’t deliver and as the House of Saud’s desperation grows, they’ll inevitably look to crank up the pressure on Pakistan. We’ve already seen hints of a ‘with us or against us’ ultimatum — mercifully so far only from an Emirati minister shooting from the hip.
But when this comes seriously and directly from the Saudis, we’d be stuck — for defying this block beyond a point entails grave costs. Foremost amongst these would be a possible move towards Pakistani diaspora repatriation that is virtually unaffordable given the economic burden it entails and the hardened religious interpretations the expats are likely to bring back with them.
But Arab desperation could also lead to more blatant coercion, most obviously, by stoking sectarian fires within Pakistan. Of course, obliging the Arabs could lead the Iranians to consider the same approach to force Pakistan to rethink such a move.
Pakistan’s only recourse is to play the middle. It should proactively mediate the conflict. Not just by making high-level visits to Tehran and Riyadh. I am imagining a permanent backchannel to identify a middle ground in Yemen that convinces the Arab world to drop their demand for mercenary Pakistani forces.
Meanwhile, the traditional Pakistani direct (physical protection) and indirect (political) support to Arab countries should continue, and perhaps be buttressed further as a reassuring tactic. Arab states beginning to face domestic terrorism will also increasingly need counterterrorism assistance. Pakistan has a wealth of experience to contribute here and should do so eagerly — again, without putting any of its own personnel on the ground.
To Iran, this rather ambivalent Pakistani position must be presented as being contingent on its assurance that the Saudi mainland will not be threatened under any circumstances. For crossing this line would be the surest way to panic Arab regimes and force them to read the riot act to Pakistan if it still remains non-committal.
As for IS, there is no room for complacency. But thankfully, the most critical state response here is already in play. At this stage, you’ve basically got to prevent the IS franchise from becoming a networked group. This requires preventive counterterrorism techniques coordinated between the civilians and the military. This is an area where the security apparatus seems to be doing better than any other.
That said, the one factor that could dent my cautious optimism is negative regional developments.
If the situation in Afghanistan goes further south and spills over into Pakistan or if the eastern border heats up, the state’s attention will be diverted. IS and its affiliates will find precisely the kind of space and time they need. Pakistan should be on the lookout for IS-inspired attempts to create circumstances that could lead a breakdown in Af-Pak or Pak-India relations.
Pakistan has survived the Middle Eastern storm so far. But things will continue to heat up in the Arab world. As they do, the demand for Pakistani presence there as well as the potential for IS to expand outside the Middle East will only increase.
Moeed Yusuf is a foreign policy expert based in Washington, DC.
Righting the Wrong
By Reema Omer
February 16th, 2016
LAST week, the Supreme Court suspended the death sentences of four men convicted by military courts for terrorism-related offences. The court directed the attorney general to produce their case records so it could determine whether the convicts had been provided reasons for their convictions and sentences.
The Supreme Court’s order is encouraging. In August last year, the court let down the cause of human rights and the rule of law when it upheld the legality of the trial of civilians before military courts — it can now act to ensure that at the very least, the procedures of military courts meet basic standards of fairness.
How far the Supreme Court (and, for that matter, high courts) can effectively intervene to ensure people convicted by military courts have been tried fairly depends on two factors: first, the legal framework regarding the civilian judiciary’s jurisdiction over military courts’ proceedings and judgements; and second, the will of the civilian courts to uphold the cause of justice, even if it means defying the military and the executive authorities.
Let’s consider the question of jurisdiction first. The 21st Amendment provides that the Army Act, 1952, under which military courts operate, is exempt from the application of Article 8 of the Constitution, which states that laws that violate fundamental rights shall be void. It also provides that constitutional provisions relating to the independence of the judiciary will not be applicable in terrorism-related cases that are tried by military courts.
Furthermore, the Army Act bars civilian courts from hearing appeals against judgements delivered by military courts, and Article 199 of the Constitution (relating to the jurisdiction of high courts) states that high courts may not intervene in cases where an application is “made by or in relation to a person … who is for the time being subject to any law relating to any of those forces”.
However, over the years, courts have chipped away at these jurisdictional limitations in the interest of justice. As elaborated by decades of jurisprudence, high courts may exercise their review jurisdiction under Article 199 of the Constitution to intervene in military courts’ proceedings on the grounds of coram non judice (decided by a court that lacks authority), mala fide (made in bad faith), or lack of jurisdiction. The Supreme Court in the 21st Amendment judgement reiterated this power to review judgements on the grounds stated here.
As an illustration, the Lahore High Court used this power a few years back to commute a death sentence given by a military court to an army officer (in a case unrelated to terrorism) after concluding that the military judges who sentenced him “had not been given the correct legal advice as to the quantum of sentence”. Many more examples are available.
Other relevant provisions specific to the Supreme Court include Article 187 of the Constitution, which gives the Supreme Court “power to issue such directions, orders or decrees as may be necessary for doing complete justice”. The Supreme Court has interpreted this to mean that if “dictates of justice demand”, “technicalities and formalities should not fetter its power”. In addition, Article 184(3) gives the Supreme Court jurisdiction over matters of public importance that relate to fundamental rights. (The court assumed jurisdiction over the cases of “missing persons” using this provision.)
As can be seen, the constitutional limitations on the jurisdiction of the superior judiciary, particularly the Supreme Court, are themselves subject to other constitutional considerations that allow courts the flexibility to act to ensure respect for the right to a fair trial, including under international human rights standards. Regrettably, the superior judiciary has thus far construed its review jurisdiction narrowly in terrorism-related cases, denying the right to effective remedy to a number of suspects even where gross violations of fair trial have been alleged.
Since January 2015, high courts have dismissed petitions on grounds of jurisdiction even where families of people convicted by military courts for terrorism offences have alleged their sons, fathers or husbands were tortured into ‘confessing’ their involvement in terrorism; were not given the right to engage counsel or call and cross-examine witnesses; were subject to enforced disappearance and remained ‘missing’ for many years before being produced before a military courts for trial; were denied judgements with reasons for their conviction; were children under 18 years at the time of the alleged offence; or were tried in secret proceedings and held in secret detention.
The Lahore High Court, for example, recently dismissed a petition made by the father of a suspect convicted and sentenced to death by a military court, who claimed his son was forcibly ‘disappeared’ in 2010. The court’s order did not address the allegation of enforced disappearance, but instead held the petitioner had “failed to establish the required elements so as to review the order of military court while sitting in writ jurisdiction…”
In another case, it held that it could only intervene in judgements passed by military courts where petitioners could prove malice or political victimisation — allegations of violations of fair trial and torture and ill-treatment were not in themselves sufficient.
In December 2015, the Supreme Court suspended the death sentences of two alleged terrorists convicted by military courts and referred their cases to the chief justice to constitute a larger bench to decide the emerging fair trial issues in the operation of military courts. Two months later, a larger bench of the Supreme Court will finally commence hearings from Feb 18.
The government has a legal duty to investigate, prosecute and punish perpetrators of terrorism. However, counterterrorism measures must be lawful and also be seen as legitimate. As Justice Khosa observed in his dissenting opinion in the 21st Amendment judgement: “compromising justice for combating this menace (terrorism) may be a death knell for the value system of the entire nation of more than 180 million people.”
Many analysts say the Supreme Court ‘compromised justice’ when it legitimised trials of civilians before military courts in the 21st Amendment case. As it now considers petitions from families alleging gross violations of the right to a fair trial in military courts’ proceedings, it has a chance to — at least partially — correct that wrong.
Reema Omer is a legal adviser for the International Commission of Jurists.
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