On 12th August the Anti-Terrorism Court handed down its judgment in the Sarfraz Shah case: one death penalty and six life sentences and compensation payments to be made to the family of the deceased. Judging from sentiments expressed in major news sites and social media, it seems that the internet frequenting public has generally welcomed the verdict as a great leap forward for the rule of law – see, for example, here and here.  I disagree – I do not believe that sentencing six low-level, unknown law enforcement agents and a seventh civilian with the same maximum punishment that could judicially have been meted out to a convicted terrorist is in any way reasonable criminal justice.

As I wrote in my earlier article on this issue, punishment should always be proportional, predictable and not go beyond what is necessary to deter criminal behavior. This decision does not seem to reflect any of these three attributes – instead, it looks more like the paradigm example of a populist court trying to placate calls for retribution.

To be clear, I do not propose that these men should not be punished – I indeed wrote about holding them accountable. However, I do not think it is good policy to see ordinary rangers being labeled and punished excessively under the same regime used to punish terrorists – is there really no difference in culpability between the two?

Criminal law should always be free from the passions of subjective moral judgment; it exists to deter crime, not to satisfy a human desire for retribution. Although true justice in this case would have required the court to insulate itself from these very subjective moral biases that were so evident in the public discourse, this did not happen. On August 4th the Supreme Court ordered the ATC to swiftly conclude the trial “in a transparent manner” – as if there’s no tradeoff between speed and quality of justice; in other words, the ATC was encouraged to quickly convict the men. Since our justice system is so outstandingly competent, only eight days later, a harshly disproportionate decision was handed down.

Clearly, by trying suspects who were guilty of manslaughter (or at worst, murder) within a regime designed for “terrorists”, the courts unfortunately signaled quite publicly that they would not divorce criminal policy from popular passions. Did the actions of the rangers here really fit the definition of terrorism? The Anti-Terrorism Act 1997 states that terrorism is when an action (including death) is caused “to coerce and intimidate… the public …” – I find it hard to understand how the action of the rangers here was intended to intimidate the public at large – no doubt they engaged in criminal behavior but surely we do not normally perceive of such behavior as terrorism. As such, the decision to try these men on the same level footing as one would a terrorist who say, blows a bomb inside a mosque, was quite arbitrary and unnecessary.

Let us also not forget that if we are to blindly accept this unsustainably broad definition of terrorism advanced by the court, then one could also argue that any common mobile thief whose actions lead to bodily harm and generates fear “in the public” could also be tried for terrorism. So much for predictability in the law – our courts now have the power to charge anyone guilty of a crime with terrorism-related offences when an excited public demands it.

Finally, will this decision actually deter trigger happy law enforcers from engaging in extra-judicial killings and therefore make the streets of Karachi any safer? Perhaps; some rangers (who mind you are generally considered a competent security provider) will think twice before shooting a suspect if the costs of being wrong are so grave and this will of course save civilian lives, which is clearly desirable.

On the other hand, it will also deter some rangers from acting in situation where we actively desire them to use force. For example, when faced with a genuine ‘ticking time bomb’ scenario where public security necessitates the use of armed force, a ranger may hesitate to act for fear that he, or his comrades may pay with their lives if it is later discovered that an inadvertent mistake was made in the heat of the moment. Such over-deterrence is not desirable and costs lives. Of course, what happened with Sarfraz Shah was not such a situation at all – there was no justification for his killing, but we can imagine some occasion in the future where facts may not be so black and white.

Rather than mete out excess punishment to satisfy the public appetite for ‘justice’, the court then should have done a number of things: it could have engaged in a cost-benefit exercise and openly balanced the need to maintain public security with the conflicting desire to protect and compensate unlawfully injured victims. It could have done this by providing guidelines that clarified when a use of force by rangers is justified.

Similarly, rather than engage in superficial rhetoric of justice, it could have conducted a investigation into the command chain of the rangers and determined if any seniors authorized such a shoot to kill policy – of course it is always much more convenient to make an example out of low-level sepoys but this is not justice. One hopes that on appeal these issues will not be ignored.