Constitutional Amendment notwithstanding, the community has the right to protect itself. Black’s Law Dictionary defines self-defense as “the use of force to protect ones self, ones family and ones property from a real and threatened attack.” Based on the law of necessity of self-preservation, “self-defense” is provided for in every religion and law, this right extending even to a stranger defending the person or property of another. Section 100 Pakistan Penal Code (PPC) gives legal protection to the individual for his actions if they cause voluntary death or any other harm to the assailant, the caveat being not to inflict more harm than is necessary.
The natural corollary of the individual having such rights, why are we even engaged in debating the collective right of society and the nation to preserve and defend ourselves against terrorism? We have to bring the terrorists’ fight to their doorstep, we cannot sit around in blissful apathy for them to act. Successful in counter-insurgency operations in Swat and FATA, the Army capped this by Operation Zarb-e-Azb in North Waziristan. There is frustration among the rank and file as in contrast many of the terrorists in urban areas are walking free. The divided political will to go after the roots of terrorism in the urban areas has now finally been harnessed after the dreadful Peshawar APC incident. For the record the 21st Amendment (to the Constitution) and the amendments in the Pakistan Army Act were passed by the National Assembly and the Senate without dissenting votes. Recording their dissent by abstaining, two religious parties very importantly did not cast a negative vote.
Taking the analogy of self-defense further, the Army unit/sub-unit detailed for “Aid to Civil Power” in a riot situation will act strictly according to the procedure given in the Manual for Pakistan Military Law (MPML). With the police failing to quell a riot even after opening fire on the rioters, the magistrate on duty hands control over to the unit/sub-unit commander present on the spot, authorizing opening fire on the rioters because the life and property of the common citizen is threatened. Even if the magistrate was not present, it is the responsibility of the officer to take action on his own cognizance to protect the life and property of the common citizens.
Carrying out the orders the soldiers will “shoot to kill”, simply causing injuries may encourage the protestors to escalate the violence when they know their life is not in danger to further aggravate the situation. The logic is that shock tactics will disperse the rioters and prevent more shooting leading to many more deaths. The ring leaders must be targeted in the mob, unfortunately the relatively less guilty usually in the line of fire are considered collateral damage. Every community has a right of self-defense. By inference such collateral damage in such a summary justice situation is acceptable where an individual becomes the judge, jury and executioner. Than why is the process of justice of military courts not?
(Former President Asif Ali) Zardari has convenient amnesia about his providing a legal framework for the Army to operate in Khyber Pakhtunkhwa. Why did respected Constitutional experts like Raza Rabbani and Aitzaz Khan fail to stop him promulgating “Actions in Aid of Civil Power Regulation 2011 (AACPR 2011)” on June 23, 2011, backdating it to Feb 1, 2008? To quote (then) President Zardari, “miscreants are waging war against Pakistan, attacking infra-structure through illegal private armies and trying to assert control over the territories of Pakistan”. Measures included the mobilization of armed forces in aid of civil power or their requisition by the provincial or federal government, armed action, stationing of troops, etc till their withdrawal by the government. Meant to cover the weaknesses in the Qanoon-i-Shahadat 1984 (derived from the Evidence Act 1872) that allows any good lawyer to laugh his guilty client through to innocence, these regulations provide that a statement or deposition by any member of the armed forces, or any officer authorized on his behalf, would be sufficient to prove the facts for convicting an accused. If AACPR 2011 is good enough for the citizens of Pakistan residing in FATA and Swat, why the discrimination protecting the citizens in the heartland of Pakistan? What was done by Zardari to qualm the conscience of Maulana Fazlur Rahman and Raza Rabbani than?
One respects those with a conscience but why did they choose to keep silent when AACPR was enacted in 2011? With Asif Zardari grandstanding doing his U-turn, Senator Raza Rabbani may shed real tears now, the fact remains he shed his conscience voting for a Bill because that was needed. Neither unexpected nor surprising, Maulana Fazlur Rahman knows how and when to benefit from opportunity but JI’s Maulana Siraj’s stand was on principles Terrorism is not going anywhere if we are selective about excluding anyone who has links to terrorism of any kind. Terrorism across the board must be targeted, action cannot be confined to only those using religion and/or sect.
The 21st Amendment is a start, it has to be further refined. In the meantime the country cannot be held hostage by technicalities, something is better than nothing! Recording the dissent of the minority we must move to implement the “National Action Plan” in letter and spirit. This is the moment of truth! Preserving society and the nation must take precedence over everything else.
The writer is a Pakistan-based defense and political analyst. He can be contacted at firstname.lastname@example.org