TERRORISM AND FOREIGN POLICY OF PAKISTAN

Lord Bingham in his book ‘The Rule of Law’ dedicated a chapter to Terrorism and the Rule of Law. The chapter delineates three differences and seven similarities between the US and the UK approaches towards dealing with terrorism. One of the differences that may be worth consideration for architects (both military and civilian) of foreign policy, in Pakistan, is that while the UK believes in ‘the criminal model’, the US believes in a ‘security model’. Lord Bingham has postulated the distinction, inter alia, on the writings of Prof. Conor Gearty, verdicts of the superior courts of the two jurisdictions and on the basis of conduct and statements of key officials. For example, he has quoted the Director of Public Prosecution of the UK, Sir Ken Macdonald Q. C. who said: ‘the fight against terrorism on the streets of Britain is not a war. It is the prevention of crime’a culture of legislative restraint in the area of terrorist crime is central to the existence of an efficient and human rights compatible process.

In Pakistan’s context, the difference is all the more relevant in formulating a foreign policy based on the rule of law and dictates of international law. Presently, without labelling it, the evidence shows that Pakistan’s foreign policy is encompassing ‘security model’ approach, which is more akin to the US practice. ‘Security model’ has its pitfalls; on the one hand, it is intrusive and presents the ‘war-like’ scenarios, on the other, it is not consistent with the all evolving international law on the point. The United Nations Office on Drugs and Crime (UNODC), in its publication, styled as ‘The Universal Legal Framework against Terrorism’, identified two main pillars of ‘universal’ legal framework, which are:

a.    UN Security Council resolutions (particularly UNSC resolutions passed under Chapter VII of the UN Charter);

b.    Sixteen international instruments, which require member states to ‘criminalise’ different manifestations of terrorism.

The abovementioned two pillars offer little space for ‘security model’ as such they hover around the ‘criminal justice model’. Another obvious issue with ‘security model’ is that the terrorists are not treated as ‘criminals’, but they are treated as ‘combatants’. As applied in Pakistan, the ‘security model’ implies that it is the domain of military to deal with terrorism and not of the ‘law enforcement agencies’. This approach has already reflected some of its weak areas as unwritten agreements/treaties, unbalanced mutual international cooperation, bungled investigations and low convictions are some of its outcomes. The approach is contrary to Pakistan’s laws as well. According to Article 2(viii) of the Police Order 2002, which defines ‘Federal Law Enforcement Agencies’, armed forces are excluded from the list of law enforcement agencies unless so notified. Besides, the powers to conduct investigations and to collect evidence especially the admissible evidence are the jobs of law enforcement agencies, which primarily are police agencies of different territories of Pakistan. An analysis of the Guidelines for General Foreign Policy as enunciated by the Defence Committee also shows that our policy makers do not have the distinction of ‘criminal justice model’ and ‘security model’ in their minds. For example, it was noted in Point 4 of the Guidelines that:

‘Pakistan reaffirms its commitment to the elimination of terrorism and combating extremism in pursuance of its national interest.’

The jargon and the diction clearly spell out the possibility of seeing things through a military prism. The formulation of foreign policy is a very technical and highly skilled assignment given its implications for the country which needs more inward than outward appraisal. In formulating the component of foreign policy related to terrorism, the input of law enforcement agencies is not taken at all. The international law, which essentially centres on criminal justice model, must be considered by all before making any policy statements. Another view can be that in Pakistan’s case, a hybrid-model based on criminal justice approach primarily and security model as a complementary approach may be workable.

Much can be said in favour of criminal justice model. From a philosophical viewpoint, the old axiom of Cicero may sound plausible. His salus populi suprema est lex (the safety of the people is the supreme law) is as true today as it was in his times. Benjamin Franklin also endorsed Cicero’s philosophy when he said: ‘he who would put security before liberty deserves neither.’ Views of both appear to proximate the theme of the rule of law.  Likewise, religiously, Islam’s propensity towards peace is unequivocal, and in designing a foreign policy in which the ultimate enemy is not very obvious the safe course would be to go by criminal justice model. The views expressed do not claim to be perfect; the only point being made is that a conscious choice be exercised after deliberating in detail on the subject from all stakeholders and the  choice so exercised should be in consonance with international law and should be morally and religiously viable.