For want of systemic singular response to counter terrorism in Pakistan, one has to allude to foreign material of comparable jurisdictions. In February, 2021, the UK Commission for Countering Terrorism unveiled its report titled as ‘Operating with Impunity-Hateful extremism: The need for a legal framework’. The report came up with many interesting ideas that looked at Counter-Terrorism Policing (CT Policing), Hate crime policing and regulation of charities and educational institutions through Office for Standards in Education, Children’s Services and Skills (Ofsted) as interconnected response mechanisms against terrorism. The multidimensional response, therefore, is sine qua non for any meaningful response to extremism. Within this multidimensional environment, the role of police becomes leading and weighty because police can use the coercive legal power of the state pursuant to the law. This legal coercive power remains abstract and is only concretized through robust legal and administrative framework. Following points may be considered for shaping a law enforcement and policing response to extremism and terrorism:
- Terrorism related legislation (i.e. the Anti-Terrorism Act, 1997) is expected to curb extremism: the expectation is based on the assumption that terrorism is synonymous to extremism. The fact of the matter is that it is only terrorism that has been criminalized and not extremism. The result is that police confines itself to criminalized activities covered under the anti-terrorism law. The activities that are anti-social and affect public order are rarely captured but these activities provide the breeding ground for extremism leading ultimately to terrorism.
- The law of terrorism is federal, but its enforcement is largely provincial. The mainstream enforcement of terrorism laws is undertaken by provincial Counter Terrorism Departments (CTDs) with some specialized role for the Federal Investigation Agency (FIA) in cases of extra-territorial jurisdiction, cyber terrorism and money laundering. It must be noted that terrorism is a subset of criminal law that is constitutionally treated as a shared responsibility of federation and provinces; mutual exclusion between federating and provincial units is not an option under the constitutional scheme.
- The Global Rule of Law Index, 2021 ranks Pakistan at 130 out of 139 countries. Without respecting the rule of law and in absence of criminal justice reforms, any coercive legal power through law enforcement may not yield the required results. Many a time, accusations are made and cases are registered only to discover later that due to lack of evidence the accused got acquitted. Every technically secured acquittal of a perpetrator of extremism and terrorism emboldens him/her to re-launch in a more aggressive manner as the deterrent value of law enforcement is neutralized and the ‘path dependence’ is perpetuated. The security model of investigations and prosecutions has only failed its advocates. It presents the perpetrators as victims and enables them to fuel hatred and to justify their actions in a more brazen manner. Contrarily, professional policing and rule of law model dealing with extremism and terrorism enhances the systemic strength and emphasizes evidence-based policing and results in sentences having dissuading effects.
- All actions that qualify to be categorized as extremism may not qualify to be treated as terrorism. This distinction of extremism and terrorism must be reflected in substantive and procedural laws. At the moment, the distinction is hardly maintained and much is left to the imagination of the observer. The government may like to consider the formalization of cases of terrorism after thorough process as most often than not categorization of extremism as terrorism leads to excessive and wrongful counting of acts of terrorism that are then used by international financial organizations like the Financial Action Task Force (FATF) to argue against Pakistan. The extant system of counting crimes is faulty anyways and it must be reconsidered. It counts crimes on the basis of reporting and not on the basis of outcome of investigation. From the viewpoint of police, crime counted on reporting is based on ‘information’ whereas crime counted on outcome of investigation is based on ‘evidence’. World over, governments use evidence based measurement in preference to information based measurement insofar as terrorism and extremism are concerned. This helps in critical decision making that involves allocation of resources and in managing perception both inward and outward.
- Rethinking enforcement and regulatory strategies for extremism is a must. Presently, only criminal prosecution is the default stratagem. Other options like administrative measures of limiting legal rights (on the pattern on non-filer of tax) may be considered to create disincentives for perpetrators of extremism. The proliferation of options in enforcement and regulatory strategies can lead to cascading a response that may result in incentivizing or dis-incentivizing an accused especially the juveniles that often fell prey to extremist propensities and with a little goaded approach can be brought back to normalcy.
- Most of extremism is being bred through social media nowadays. Subject to privacy and data protection standards worldwide, the police must be equipped with capacity and technology to monitor trends and active protagonists. Depending on the intensity and scale, the police may be allowed, through legislation, options ranging from criminal prosecution to non-issuance of character certificates and driving licenses to delinquent elements. Beating all with a big stick might not work as one size may not fit all. This is easier said than done, but is still achievable by constituting inter-departmental synergies that may not leave decision in hands of a single individual. At the moment, the provincial police do not have the legal authority to deal with this subject at all; some police organizations, however, might be doing it on their own by risking their reputations and by breaching privacy and data protocols. This must be streamlined and digital policing must be mainstreamed and properly regulated with inbuilt mechanisms for accountability for abuse of fiduciary power of monitoring trends.
The aforementioned points are by no means exhaustive and are very much fallible. The only purpose of stating these points is to initiate discourse that can think of policing as a ‘service’ to the society and not as an ‘instrument’ as envisaged by the Police Act, 1861. Approaching criminal justice in rule of law framework has the potential to bring about, in the words of Lord Denning, a ‘legal revolution’ as compared to much touted ‘social revolution’ that may set the turf for a more peaceful and thoughtful society in Pakistan.
