The killing of Malik Ishaq, under the pretext of police muqabala, marks a decisive escalation in the ongoing war against terror, being waged by the security agencies of Pakistan. It is perhaps the most tangible statement of intent by our national security apparatus, in regards to the sectarian and religious battle, which threatens the very life and integrity of our State. For the first time, in our fight against religious extremism, we have overtly expanded the arena of battle from anti-Pakistan groups such as TTP, to the anti-sectarian outfits of Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP). And this graduation of sorts, while deserving all the accolades in our lexicon, requires a deeper review of the manner in which Malik Ishaq and his cohorts were killed, its impact in light of the National Action Plan, as well as the constitutional and legal paradoxes that it presents.

Over the past thirty years, ever since the first time ‘Kaafir! Kaafir! Shia Kaafir!’ was graffitied on a wall in Jhang, the State of Pakistan, and her people have been living (and dying) in the crossfire of a fourteen hundred year old battle that rests at the heart of Islamic ideology and way of life. This perennial battle, which several theologians claim to be cosmological in nature, exists independent of the State of Pakistan. Our State and its institutions have no power to resolve the competing theological and historical differences, which transcend national boundaries and the empire of our Constitution. Nor should it. Still, however, the State has a constitutional obligation to protect the life and property of its citizens, even while they may choose to disagree with each other on matters of faith.

This, in a country where almost eighty percent of the population prescribes to the Sunni schools of thought, has not been easy. In fact, successive political (and military) leadership has had a sympathetic stance towards the fringe Sunni groups that are militant in nature. After all, why fight a battle that does not threaten you personally?

Resultantly, as religious differences turned caustic, rhetoric turned increasingly insidious, and militancy became bolder with each incremental kill, the democratic empire of our State shrunk to make space for militant fiefdoms. Mandatory constitutional command of Article 256, which prohibits private organization capable of functioning as a military organization was surrendered at the altar of political expediency. Over time, a one-off target killing of Shia Muslims became indiscriminate firings at Imam Bargahs, and then finally mass massacres in the streets of Quetta and Shikarpur. To the point that these killings, carried out by bearded Pakistani citizens, who live in the heart of our urban and rural centers, became an even graver existential threat to the life of our State, than the (somewhat) identifiable enemy who lives in the rugged mountains of the tribal belt.

Amidst clamor against a duplicitous policy that makes insincere distinctions between good and bad militants (supported, in equal parts, by rogue elements in the intelligentsia, as well as naïve politicians), it seems that the high-command of our national security apparatus has finally decided to erase this inexcusable divide. The killing of Malik Ishaq, his sons and his companions, seems to mark the announcement of a new counter-terrorism initiative, which deems sectarian terrorist organizations at par with TTP militants.

In a PML-N government, which has been in bed with Sunni ideological outfits for the entire duration of their political existence, the killing of Malik Ishaq (under the benign pretext of a police muqabala), is an exceptionally unlikely step to take. In fact, with sympathizers such as Rana Sanaullah still enjoying powerful positions in the party, it is improbable that PML-N took the initiative of taking-on the LeJ. The credit, in this regard, squarely rests with the army, and in particular with General Raheel Sharif, who has taken the most herculean leaps in the war against terror, emphatically parting ways from the hypocritical legacy of General Kiyani. The killing of Malik Ishaq, even by our police force, could not have been done without the approval and support of the Khaki leadership.

The first question that now needs answering is whether the killing of Malik Ishaq was a one-off incident, or will this policy be pursued, as part of the National Action Plan, against other leaders of LeJ, SSP, and ancillary sectarian militant outfits. Even more importantly perhaps, this opening of a new front in the war against terror, begs another question: Will this anti-militancy drive be stretched to the shores of militant organizations that are neither anti-Pakistan nor anti-sectarian, and instead focus their activities across the border? Will organizations such as Lashkar-e-Tayyaba (LeT) be included within the fold of counter-militancy operations? Or will the doctrine of strategic depth come to rescue militant fanaticism that supports our national security ideology?

Away from these policy issues, which are exceptionally significant in themselves, the killing of Malik Ishaq raises unavoidable legal and constitutional issues.

The story, as reported, discloses how Malik Ishaq and his companions (who had been arrested under the PPO) were killed in a police-encounter, during the course of recovery of weapons and ammunition. From a purely legal perspective, this story seems implausible. What is more likely is that, faced with a socio-legal paradigm where no witnesses would step forth to bear testimony against Malik Ishaq, no trial judge would have the protection to render a verdict against him, and no appellate Court would find a beyond reasonable doubt case to convict him, the security agencies decided to eliminate this man who has proudly confessed to killing over 100 million Shia Muslims.

In the circumstances, the security agencies had one of only two options: 1) kill Malik Ishaq in a police muqabala’ and 2) try him in the Military Court and see him hanged. Conceding the fact that certain individuals (who are beyond rehabilitation) are better dead than alive, which of the two would be better? Should our State step outside our constitutional and legal framework, in order to eliminate an eminent threat? Or is it nobler to amend the very constitutional fabric, in order to make legal space for this killing? Is it better to accept the fact that we are stepping outside the gates of law in order to do what is necessary, or must we justify our actions to be legal by corrupting the very edifice our Constitution?

These are tough questions, which are almost more ideological than legal in nature. There can be little cavil with the fact that individuals like Malik Ishaq threaten the life of our State and her people. It is equally incontestable that the only long-term solution for fighting and curbing militancy in this land is to develop robust civilian law enforcement institutions, which work under the shadow of a functional judicial system; one that inspires confidence, and does not need the crutches of military Courts to stamp out militancy. This virtuous struggle, which in essence is a fight for the very soul of our nation, requires a purposeful effort from all concerned.

Post script: As photos of Malik Ishaq flashed across television screens, after his killing, a local cleric commented on the mairaab he had, as an indication of his piety, sajda and prayer. In response, his student asked, “Sir, do you not remember how many namazis, Hajis and Hafiz-e-Quran fought in the lashkar of Yazid, against Imam Hussain (AS)?”

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.