Prosecuting Pakistan’s New Extremists

Michael Kugelman, Adam Weinstein
Wednesday, December 19, 2018, 9:04 AM

Pakistan confronts a new type of extremist threat: one that challenges state institutions without rejecting the state itself.

Supreme Court of Pakistan (Source: Wikimedia/Khalid Mahmood)

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Pakistan confronts a new type of extremist threat: one that challenges state institutions without rejecting the state itself.

Last year, a new and relatively unknown religious movement led by a cleric named Khadim Hussain Rizvi staged a sit-in that brought the Pakistani cities of Islamabad and Rawalpindi to a standstill. The action was meant to protest a change made to a religious oath uttered by new Pakistani parliamentarians. Nearly a year later, his Tehreek-e-Labbaik Pakistan (TLP) party took to the streets again, this time to protest an Oct. 31 Supreme Court verdict acquitting Asia Bibi, a Pakistani Christian woman, of blasphemy.

On Dec. 1, he was charged with sedition and terrorism.

TLP has not perpetrated deadly attacks. But it subscribes to a violent ideology that includes calling for the deaths of liberal Pakistani activists and anyone accused of blasphemy. It also lionizes figures like Mumtaz Qadri, who assassinated Salman Taseer, the governor of Punjab province, in 2011 because of his support for Asia Bibi.

Deaths from terrorist violence in Pakistan have decreased by approximately 77 percent since the military launched a major offensive in 2014 against the Pakistani Taliban, the country’s prime perpetrator of anti-state Islamist militancy since 2007. Now, however, Pakistan confronts a new type of extremist threat: one that challenges state institutions without rejecting the state itself.

If the fight against militant groups such as the Pakistani Taliban resembled a game of armed checkers, then the effort to rein in Rizvi’s TLP movement is reminiscent of political and legal chess. Neither annihilation nor appeasement will work. Instead, the state will need to adapt a careful and comprehensive approach that combines short-term legal action with broader long-term measures that weaken the ideology that galvanizes the movement and rallies supporters to its cause.

TLP tactics of sit-ins, roadblocks and property destruction are intended to work whether the state gives in to its demands or confronts it with force. This is because either response by the state increases the group’s prestige—whether as an influencer or martyr. So the challenges for the state are considerable. Many prominent voices inside Pakistan have either expressed support for appeasing the movement by giving in to the initial demands of its protest and then pursuing legal measures, or have criticized the state for not crushing the movement once and for all. For now, the government has adopted the first approach. It concluded a closed-door agreement with the protesters that ensured Bibi could not leave the country. This accord may have emboldened TLP, but it also resulted in immediate de-escalation of the protests—and it set the stage for using the legal system to hold members accountable for actions taken during the protests.

Indeed, in late November, the deputy commissioner of Lahore, Pakistan’s second-largest city, ordered the arrest and 30-day detention of Rizvi under the Punjab Maintenance of Public Order Ordinance (MPO). This law, enforced in the province where Rizvi is based, permits preemptive detentions to prevent threats to public safety. In Rizvi’s case, the order for his detention reads that it is to ensure that he will not “create a law and order situation and cause harassment among the general public.” Hundreds of TLP members were arrested as well to prevent protests in response to Rizvi’s detention. Then came the government’s big announcement on Dec. 1 that Rizvi and other prominent TLP leaders had been charged under terrorism and sedition laws.

Pakistanis and outside observers alike often discount the effectiveness of Pakistan’s legal system. Criminal cases hinge on the political will of prosecutors, judges face credible death threats, and police responsible for arrests are transferred between departments as punishment for simply doing their jobs. Be this as it may, true rule of law must include a competent criminal justice system that holds even the most deplorable citizens accountable while simultaneously protecting their civil rights and due process. The prosecution of TLP members will prove a test of both.

In Pakistan, criminal investigations of serious crimes, known as cognizable offenses, begin when a police report, commonly referred to as an FIR, is registered. Anyone can register an FIR so long as it is for a cognizable offense, and then police may begin an investigation and make warrantless arrests. Following the agreement with the government to cease protests against the Bibi verdict, numerous FIRs were registered against the protesters and approximately 5,000 TLP members were arrested across Pakistan. This large-scale legal effort by the government marked a drastic shift from just months ago, when Rizvi live-streamed himself giving a sermon near Data Darbar, a famous Sufi shrine in Lahore, in open defiance of the non-bailable arrest warrants lodged against him for actions committed last year.

Using Pakistan’s legal system to challenge Rizvi’s movement, however, has its limits. While there are some ways to prosecute Rizvi and his most ardent followers, the reality is that most laws would result in a slap on the wrist. Most would require more serious crimes by TLP to have any effect, or they would be applied far more broadly than intended. For example, under Sections 141 to 149 of the Pakistan Penal Code, a conviction of unlawful assembly may land a defendant in prison for six months. Meanwhile, a rioting conviction can extend that sentence to two years, and rioting with a deadly weapon increases it to three years. All three offenses, however, may also be punished by a mere fine. Sentencing discretion falls on judges who consider the facts of the case, but political pressure to give a light or harsh sentence can also be a factor.

A more appropriate charge for Rizvi may relate to online activity. Section 10A of the Prevention of Electronic Crimes Act might be applicable to his tweets, many of which could be construed to advance sectarian hatred that may lead to violence and were deleted by Twitter for hate speech. Thus far, however, the government has not leveled a charge along these lines.

What about the Anti-Terrorism Act (ATA), which enumerates crimes that qualify as terrorism? The legal definition of terrorism in Pakistan once required the use of bombs, dynamite or other explosives. More recently, however, defendants ranging from absentee teachers to alleged murderers in family and land disputes have been booked under the ATA. So it would seem natural that destructive mobs of extremists, such as TLP members, could be charged with terrorism as well. Section 6(2) includes examples of terrorism that at first glance appear to match TLP’s tactics. These include the incitement of hatred on religious or sectarian grounds, the burning of vehicles, creating a safety risk to the public that “prevent[s] them from coming out and carrying on their lawful trade,” and taking the law into one’s own hands to coerce a government official (last year, TLP protesters staging their sit-in demanded the resignation of Pakistan’s law minister, the official who had authorized the change to the religious oath). TLP’s latest protests are estimated to have caused losses worth 226 million rupees ($1.6 million U.S.) in just Punjab province, where vehicles were set ablaze and numerous businesses ransacked. The destructive nature of these protests may be why Rizvi has ultimately been charged with terrorism.

Generally, for an individual to be prosecuted in Pakistan’s anti-terrorism courts, the action must be specified in Section 6(2) of the ATA; have the impact of causing intimidation, awe, fear and insecurity to the public; and be committed with design, intention or mens rea (the knowledge and/or intent to commit a crime). In fact, Pakistan’s Supreme Court has held that the intention of the offense itself is what distinguishes terrorism from other crimes.

But this is where things become murky: Both apparent motive and resulting impact have been used as determining factors of intent in terrorism cases. In 2017, Pakistan’s Supreme Court reiterated that lawmakers did not intend that the ATA would be “liberally extended” to cases where the object of the offense is not terrorism or militancy. Some of TLP’s actions, such as the use of low-level violence in protests, may be viewed as terrorism. Still, a comparison of TLP’s mobs—unruly as they may be—to suicide bombers is a faulty one. The TLP is no Taliban.

Ultimately, while proving a terrorism case against Rizvi has a chance of success, it will be quite difficult to do so.

After the TLP protests following the Bibi verdict, one petitioner submitted an application to lodge an FIR for treason against Rizvi, but this was later dismissed by the Lahore High Court. High treason as defined by Article 6 of Pakistan’s Constitution can be applied to anyone who is found to abrogate, subvert, suspend or hold-in-abeyance Pakistan’s Constitution. The prominent newspaper journalist Cyril Almeida and former prime ministers Nawaz Sharif and Shahid Khaqan Abbasi all stand accused of this expansive definition of treason. Chapters VI and VII of the Pakistan Penal Code also include crimes against the state and military such as abetting mutiny and depriving the state of sovereignty. These conceivably apply to TLP’s calls for revolt against Pakistan’s army chief and the army's occupation of large sections of major cities. However, the government may not want to spotlight TLP’s challenge to the military.

In reality, while TLP desires to redefine the Pakistani state, it does not seek to overthrow it. Therefore, like the journalists and politicians who stand accused of treason, TLP’s actions seemingly fall short of subverting Pakistan’s Constitution. Perhaps this is why it appears the government has settled on charging Rizvi under Section 124-A of the Pakistan Penal Code—Sedition. Anyone who attempts to induce disaffection or hatred toward the federal or provincial governments may be guilty of sedition, which can carry a life sentence. The law was inherited from the British Raj by India and Pakistan and was used by the colonial government to control religious and independence movements. Nevertheless, a charge of sedition may stand the greatest chance of legal success against Rizvi, given that TLP’s actions and rhetoric so clearly excoriate the government.

That said, the difficulty of prosecuting a movement like TLP cannot be overstated. The legal system is always vulnerable to influence from politicians and the military. Additionally, if the prosecution moves forward, it will invariably prove unpopular among some segments of the population. Protests, threats and other forms of pressure could compel prosecutors to walk back their efforts. Time will tell whether these new charges amount to a legal version of kicking the can down the road, and end with a quiet dismissal of the charges after Rizvi’s legal travails have faded from the headlines.

More broadly, defanging TLP in any way won’t be easy. Hypothetically speaking, an armed confrontation with TLP may crush the movement, but such a scenario could easily spiral out of control. The Pakistani state learned the hard way in 2007 that cracking down on religious protesters can backfire. After President Pervez Musharraf authorized a military operation against religious students and militants holed up in Islamabad’s Red Mosque, Islamist extremists staged multiple retaliatory attacks. The operation also led to the formal establishment of the Pakistani Taliban, which launched a bloody campaign of terrorism that has receded only over the past few years.

Pakistan’s government has so far sought to curtail TLP by mollifying first and prosecuting second. Critics of this approach contend the movement cannot be curtailed until the appeasement ends. And each of these approaches ignores the power of TLP’s message, which taps into widely held religious and class-based grievances.

Indeed, TLP espouses bigoted views about religious minorities in a nation where large components of society—influenced by the hate speech of clerics, school textbooks and television talk show hosts—see little reason to support Shiites, Ahmadis, Christians or Hindus.

Additionally, TLP rhetoric exploits class cleavages in a nation cursed with deep levels of inequality. Pakistan’s sharp class divides can be seen across the board—from patterns of land ownership (a small minority holds a large portion of all privately owned land) to educational attainment (57 percent of Pakistan’s poorest children are not in school, compared with just 10 percent for wealthy children). Pakistan’s inequality is persistent and entrenched. Forty percent of children in the lowest income quintile are expected to remain in that same quintile for their whole lives, according to an Oxfam/Lahore University of Management Studies report.

TLP has used explicitly class-based rhetoric—including imploring hired help such as drivers and cooks to murder judges and others who oppose TLP’s stance on blasphemy. This recourse to class rhetoric has a precedent with religious hard-liners; as Pakistani political scientist Umair Javed has explained, Jamaat-e-Islami, a large conservative Islamist organization, has made direct appeals to the working class as well. And in the 1980s, according to Owen Jones in his book “Pakistan: Eye of the Storm,” the Sipah-e-Sahaba Pakistan, a violent sectarian group, channeled the discontent of Sunni peasants in Punjab who felt exploited by Shiite landlords. Unsurprisingly, two Sindh Province Assembly seats TLP won in 2018 represent areas that include Lyari and Baldia towns, two impoverished areas in the megacity of Karachi. To be sure, causation between poverty and radicalization is far from direct; yet inequality likely explains some of TLP’s appeal.

Pakistan’s major political parties and military are fully aware of how deeply TLP’s ideology resonates across Pakistani society. Military and civilian leaders have themselves harbored links to extremist religious parties.

While the security establishment’s support for the likes of Lashkar-e-Taiba (LeT), an India-focused terrorist organization, is well known, the establishment has also reportedly backed the “mainstreaming” of newer, less maximalist organizations such as TLP and Milli Muslim League—a political party with ties to LeT. The military claims that by bringing such groups into the political process, they will become more moderate and less likely to resort to violence. In reality, the establishment’s ulterior motive may be to create more legitimacy and influence for hard-line Islamist groups that it often supports.

Meanwhile, Pakistani politicians have shared stages with religious hard-liners at election campaign events, and they have frequently derived political benefits from supporting these groups. Indeed, TLP has served as an ally of sorts to the Pakistan Tehreek-e-Insaf (PTI), Pakistan’s current ruling party. When TLP held its extended sit-in in November 2017, it successfully pressured and weakened the government, which was then led by the Pakistan Muslim League-Nawaz (PMLN) party. The sit-in brought major benefits for PTI, then in the opposition, and the military, because both had sparred with PMLN for several years and had sought ways to undercut it. Now in the opposition, PMLN figures such as Rana Sanaullah have criticized the government’s decision to prosecute TLP leaders, warning that it may backfire.

For these reasons, politicians and the military alike have historically preferred to co-opt rather than challenge movements, including most recently TLP, so that they don’t jeopardize relationships that bring major benefits.

A lasting pivot away from appeasement will require the cooperation and buy-in of the military establishment, Prime Minister Imran Khan and Khan’s PTI party. The establishment and Khan have a clear incentive to enforce a red line against groups that challenge the writ of the state, especially as both are waging an international public relations campaign to disassociate Pakistan from extremism. Yet it remains to be seen whether the political will exists to make a dramatic pivot away from the hard-liners and to jettison the kid-gloves treatment toward extremist groups.

The strong levels of societal support enjoyed by religious hard-liners cannot be overstated, even if such support doesn’t typically translate into widespread electoral success. While Pakistan’s Islamist parties rarely fare well at the polls, they enjoy the capacity to mobilize large numbers of supporters on the street. The TLP showcased its national reach when its members and other supporters came out in force in the hours and days after the Bibi verdict. Large protests occurred in Islamabad, Lahore, Faisalabad and Peshawar. The group even gridlocked parts of Karachi, Pakistan’s largest city, where it has gained a foothold in working-class areas and taken advantage of the dismantled grass-roots network of the Muttahida Qaumi Movement-Pakistan, a party mainly composed of the city’s ethnic Mohajirs.

When it comes to definitively weakening TLP and its ilk, there are no quick fixes. Crushing them with force could spark destabilizing backlashes. Legal measures, including holding TLP leaders accountable, can offer short-term benefits but are ultimately insufficient. In the end, tackling the TLP threat will require the same type of ambitious policies needed to blunt violent extremism elsewhere: the crafting of state counternarratives that condemn extremism and bigotry in all forms, the introduction of sustained educational reforms, and the implementation of meaningful measures that reduce inequality, among other correctives.

None of this can be done overnight. Pakistan may have concluded agreements and initiated prosecutions to keep TLP at bay in the short term, but the movement won’t melt away anytime soon—and it won’t take much to bring protesters back into the streets.

Michael Kugelman is the deputy director of the Asia Program and South Asia senior associate at The Wilson Center. His work focuses on Pakistan, Afghanistan, India and Bangladesh.
Adam Weinstein is a Research Fellow at the Quincy Institute for Responsible Statecraft. He holds a J.D. and served as a U.S. Marine in Afghanistan.

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