Mr. Ahmer Bilal Soofi
Mr. Ahmer Bilal Soofi is a graduate of Cambridge. Mr. Soofi is a practicing advocate before the Supreme Court of Pakistan. He is an expert on international law and founding president of Research Society of International Law. He is also member of the Advisory Committee of the United Nations on Human Rights.
Ambassadors, Excellencies, Ladies and Gentlemen
Assalam o Alaikum
11th May was very important event in the history of Pakistan in the context of this topic. 11th May – when we were part of the Federal Government, we were genuinely worried about whether we would be able to make elections happen on this date, given the threat from non-state actors. Outright threats, if you recall, before 11th May when there were many rumors that the caretaker setup would last months and years, and something was likely to happen on the 8th or 9th to derail the elections; non-state actors would strike. We were given information and briefings about the nature of the very serious threats on the day of the election, assassination plans and so on so forth. One of the Chief Ministers of the Province confided in me saying, this doesn’t look like it is going to happen. Due to some legislation, emergency legislation permits a covering candidate to step in if the main candidate is assassinated.
This was the atmosphere around 11th May and in that context we were genuinely worried whether the people of Pakistan will step out of their houses and come and vote or not. And when 11th May, ladies & gentlemen, happened, it was great in so many ways – it was a defining moment for Pakistan. The people of Pakistan reposed their confidence in the democratic process. The people of Pakistan rejected terrorists. The people of Pakistan rejected threats from non-state actors. The people of Pakistan proposed, through their vote, that they want a society much different from the one that has been forced on them. The turn-up was a verdict that the society of Pakistan wants a liberal environment, it rejects terrorism – not only does it reject terrorism, but it is prepared to come out to 70,000 polling stations when each station was a potential target. Families were there, people of all ages were there, they had been waiting for this time for five years. So I think the people of Pakistan have given the power of Attorney to the new Government, to the new leadership. They’ve put Mian Nawaz Sharif in charge of the chair of war in this country. They’ve put Imran Khan in charge of the province where the theatre of war is ongoing. They now have complete authorization, under the constitution, under the democratic practices and principles, to take decisions, bold decisions, and give an alternative narrative to this country. And stand up and motivate people to write against those who are challenging the state itself.
So I have absolutely no doubt in my mind about the mandate which the present government and leadership enjoys. It would seem to me as if the rest was an additional formality. The mandate is absolutely complete. The context in which this mandate has been given is unbidden; the context is a nature of challenge – challenge like radicalization, which translates itself into terrorism, domestic terrorism, and then creates a distinction between a traditional terrorist who used to attack a group, a sectarian group, versus what he would never attack – the writ of the State. He would carry out a terrorist attack in Lahore, in Jhang and in Swat. But this brand of terrorism that Pakistan is facing today is waging a war against the state of Pakistan. Every terrorist strike is a manifestation of the declared war on the State. We have failed to read the signposts clearly enunced by non-state actors, declaring that they are in a state of war with Pakistan.
We are wondering at the moment is what kind of a relationship, legal and/or constitutional, do we need to engage with them. I think we need to cross this boundary. What we need to do, in a very specific sense, is take action at three levels; level one, at the law enforcement level, level two, at the madrassa level, and level three, a Muslim narrative at the global level. I’ll briefly introduce these three levels and ideas, and possible solutions.
Level One – Law Enforcement. Upgrade the law enforcement system where it needs to be updated. We now have a few legislations like the Fair Trial Act, where you could create a distinction between intelligence gathering and evidence gathering, and collect information and admissible evidence at the stage when intelligence gathering is taking place in order to prevent an act of terror from happening. We now have, in aid of civil power regulation in FATA, where jury in need of civil power operations can house people or non-state actors under suspicion for actions against the state as internees; therefore a legal framework does exist. The next important step is what you do with the inmates. Throughout Pakistan, all jails house inmates. In addition to the Madrassas, the ‘jail’ venue has served as a breeding ground for those who want to promote a different, extreme narrative. Specific steps need to be undertaken in this regard. Small steps, not major steps, that do not even require funding at this point, only a different management approach. What do inmates in Adiala Jail and Kot Lakhpat Jail in Lahore listen to during the Friday Khutbas? Who delivers these Khutbas? Control that script. What literature do they read on a daily basis? Control that literature. Do they have cell phone access? Deny it. Do they have the right to meet people other than the immediate family? Restrict that – re-scrutinize that. So the inmates, whether they are in judicial custody or conviction mode, are very much available and completely in the possession/custody of the state and a de-radicalization process can be carried out, in the context of the entire country, and not only in internment centres. We do not have this program right now. Jail management can be amended to incorporate these suggestions; Jail managers could simply add on to these. I’ll stop here in terms of the law enforcement context.
Deterring law enforcement is my second point; the judicial aspect. The fear of the Suo Moto sometimes also becomes a deterring factor for law enforcement. Informally, with people conducting such operations, one fear is that tomorrow there will be a suo moto, there will be judicial scrutiny, and the video tapes will be run, so there is hesitation. There are requests for approval to take action at the highest level. Civil investigation into the jailbreaks found the Army was asked to come and step in to deal with the jailbreaks taking place. Somebody must have said give us documentation, legal documentation, as required in Article 245 – the complete documentation – before we can let you come in. So issues which are related to management aspects are also there.
There has to be a balance between the judicial oversight and the compulsions of the State in the context of the situation it is in. This confusion arises because there is no political narrative, even to convince the courts and the media and the people. And there should be a narrative; a very simple, constitutionally focused narrative. If I were to give that narrative, I would simply say anyone who violates the Constitution of Pakistan, who attacks the State of Pakistan, and the people of Pakistan is our enemy, period. Without going into the other factors such as the War by the US and so on and so forth. To me, my constitution needs to be upheld in the territories of Pakistan, throughout the territories of Pakistan. And there are two specific violations that a non-state actor does; Article 5, which says you have to be loyal and obedient to the constitution of the state and when he launches an attack on a state infrastructure, on a hospital, he is withdrawing his loyalty from the state. I should simply say anyone who withdraws his loyalty from the state is my enemy, that’s what the law permits me to say. Anyone who attacks a symbol of the state, for example GHQ, or a hospital or a police post, all of which are symbols of the state, is violating the constitution. And we have to enforce the constitution. The other violation is Article 6; private armies are unlawful. No one will have private armies in Pakistan and a non-state actor is raising a private army. If he is doing so, I need to disarm him, either through dialogue or the use of force, as per the states mandate laid out in Article 256. Upholding the rule of law and the constitution, that should be my narrative – a constitutional and legal narrative, and I do not think there is disagreement on this.
The third issue that I would like to look at quickly is the Madrassa reform. When I was the law minister, I had commissioned a meeting over the status of Madrassa reforms, because to me that is very vital. The status is slightly confused because Madrassa reform has been devolved pursuing the 18th Amendment to the provincial government. There is uncertainty as to how we can work with that, and therefore there should be a Federal level initiative which coordinates the Madrassa reforms. These reforms must include introducing our Islamic scholars and our Islamic teachers and be within global/international legal frameworks. Right now, Islamic scholars throughout the Muslim world are not aware of the UN Charter Framework, of the Treaties, of the UNSC Resolutions, of various other frameworks, and there are thousands of them. I’m also advising the Secretary General of the OIC and I have suggested to him that the OIC should consider opening up a Centre that engages Muslim scholars at a global level, and take them through basic legal materials that bind Muslim states. And we should synthesize Muslim scholars, and that synchronization will trickle down into jurisprudence, into speeches and then to the people that if you are a member of the state, if you are a citizen of a state, you are bound by the commitments made by the state on your behalf. We have to avail whatever those commitments are, whether those commitments are in the context of environmental law, or transit law, in the context of law of the sea convention, human rights law, counter-terrorism issues or trade, those commitments are signed and executed by the state specifically. Islamic scholars are completely unaware of those. So I think that’s an area that we need to focus on.
My time is at an end so I’ll just conclude by saying that after having served in the government and being familiar with the processes, I have become optimistic. I think this country can be turned around in a matter of six months to a year. It has so much potential. I agree with some of the participants today and Senator Mushahid Sahab that what this country needs today is a bit of hope, motivation, and that is the job of the state. To say to its people that do not worry, we will stand up and fight back, crises happen everywhere but we will get through them if you stay with us. And it will happen, Insha Allah.