Malik Ishaq and The Due-Process Argument

Two lives: Yakub Memon and Malik Ishaq. One convicted of terrorism, with the conviction upheld by India’s top court. The other accused of being a terror master-mind as well as the inspiration behind scores of murders in cold blood. One belonging to the minority community in India, the other the majority in Pakistan, one hanged by India after the apex court opened its door at 2am to hear his lawyers; the other riddled with bullets, in the dark, after an alleged ‘police encounter’ — code for extra-judicial killing by the state.

While Memon’s lawyers lost to the system (and arguably its biases), Ishaq’s lawyers used the system’s weaknesses (and arguably its biases) to no end. But what ends up being most important, and this is not an endorsement of the desirability of this position, is the court of public opinion: the deaths of both have been celebrated by a large number of people in each country. Through state-backed killing, goes the argument, justice has been served.

We should all find this extremely disturbing.

This isn’t about mourning the death of certain individuals — but about the principle, or lack thereof, that underpins celebration of violence by the state. After a 1980 ruling by the Honorable Supreme Court of India, the country has (at least officially) abided by the principle that the death penalty should only be awarded in the “rarest of rare” cases. There are, however, multiple later judgments of the apex court in India after 1980 that have been criticised as not following the 1980 precedent.

However, even during Memon’s case it became clear that India is engaged in a very healthy and passionate debate about the desirability of death penalty. This is commendable and should be celebrated by all those in India interested in this cause. This does not mean, in any way, that India as a state has become averse to the use of violence.

Just like Pakistan (and Ishaq’s killing) there are hundreds, if not thousands, of instances each year, in India, of ostensibly extra-judicial killing. And while the Pakistani state, till recently, maintained a moratorium on death penalty, its own lust for violence did not diminish.

The celebration of extra judicial killings in Pakistan is nothing new. Time and again the alleged failures of the justice system (or the inconvenience of complying with the law) have been cited as an argument in support of this practice. But every time we celebrate, or fail to protest, extra judicial killing we are putting ourselves in peril. We are, in effect, telling the state and the establishment that they have the power (and our support) to circumvent the law — as long as the ends justify the means. As long as the people killed are the ones we have a problem with. Now, since nothing about the practice is legal there is no way to stop the state from turning on us when it decides that we actually deserve this mode of speedy justice.

It is staggering that people who claim to have problems with drone strikes or strikes by Israeli jets to take out suspected terrorists or claim to be disturbed by torture and detention of ‘missing persons’, in Pakistan and elsewhere, have absolutely no qualms about this barbaric practice. They claim to be repulsed by actions of Indian security forces in Kashmir or CIA’s secret prisons — but that is all political posturing, not stemming from due process related concerns. If anything, actions such as drone strikes in theatres of war have the virtue of candour and a better legal argument behind them: due process does not apply in a theatre of war when you are fighting each other. But that is not the argument applicable when we arrest people and later decide to kill them.

People in Pakistan often mock the due-process argument when made in support of terror suspects. “They are animals and do not deserve any rights.” The subject is indeed emotional and one must respect that.

However, such statements that those suspected of gross crimes do not deserve fundamental rights, are factually and legally incorrect. So, we are essentially lying by saying that someone does not deserve due-process — and this is a lie to make ourselves believe that some higher moral cause is justified by our own barbarity. All terror suspects have rights. If we started off by saying that we are breaking the law and are choosing to be barbaric we would at least be honest. If we can’t accept our humanity, and that of others, we must at least acknowledge losing it.

Throughout this process, the distinction between our enemies and us becomes blurred. Those we are fighting are willing to break the rules, in fact they challenge those rules, and want to kill us. We, on the other hand, are not even being as honest as our enemies; we want to maintain the pretence that we abide by some rules without ever doing so. If violence is a religion then the terrorists are preaching to the choir, i.e. the state. We have turned into another version of those we claim to be saving ourselves from.

None of this is meant to undermine or gloss over the immense grief of those who have lost loved ones in terror attacks. But the state’s pick-and-choose policy of killing those citizens it deems too troublesome is nothing but an insult — to the dead as well as those alive and relying on the law. And it should be irrelevant whether the loved ones of those who have been killed by terrorists support state-sponsored extra-judicial killing. Individual or even collective notions of a fitting revenge should always be subordinate to the due-process of law. That is the whole premise of a legal system.

Of course some might argue that the justice system does not always work. But that is no argument for murder. If you think that is logical reasoning then you are, first and foremost, robbing yourself of any and all protections that work to the advantage of your person and/or property.

If a system has shortcomings then the answer is to reform it — instead of lying about cold-blooded murder.

Here is another surprising thing: on all other occasions in Pakistan, people love giving the example of religion-mandated fairness. The Holy Prophet, his teachings, Quran and respect for rights of accused are all cited. But not when it comes to terrorism — in this sphere, murder is justified. Violence is the only religion we are subscribing to.

We are all willing to condone, celebrate, call for and commit murder. It just depends on who strikes first.

Just remember: We may not always be the ones doing the celebrations.


This article has been previously published in The News on Sunday.

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Waqqas Mir

Author: Waqqas Mir

The writer is a practicing lawyer. He is a Barrister and has a Masters degree from Harvard Law School which he attended on a Fulbright scholarship. He can be reached at [email protected] and on Twitter @wordoflaw

1 comment

A nicely summarized point of view on part of a loyal citizen. The last para boggles one’s mind though. If the terrorist organizations attempt to commit killings citing the Islamic notion of WAJIB-E-QATAL, why is the government relucatnt to reciprocate it through Islamic channel?
Its a matter of common fact that Religion has been used as a driving force for the un-judicial killings through-out the country. Why is the government reluctant to cite the religious perspective for executing such non-state actors?
Moreover removing apples from the tree wont uproot the tree. Inter-sect-unity seminars must be held throughout the country to promote love and minimize hatred.

Comments are closed.