In a piece on why the Miami Herald and its excellent correspondent Carol Rosenberg cover the detention centre at Guantanamo Bay, the Herald’s executive editor notes that “The Miami Herald continues our commitment to cover the detention center at Guantánamo Bay because it’s our obligation to report on a place where few can go. We don’t cover Guantánamo to get anyone off, or out of jail. We do it to show the American people and the world what is being done in our name.”
In Pakistan, there is little introspection on what the state has done in the name of national security. The state’s actions and the outcomes will always be debatable, given what political party one supports or ideological leanings.
But does national security mean waiving due process?
Of course, one can make the argument that due process has not existed in Pakistan for a long time. But does that mean that one should not look at the laws that are being implemented to support this?
This week, the presidency issued the ‘Protection of Pakistan Ordinance’.
According to the text of the ordinance – the enforcement dates of which have not been specified, so I assume there is potential here to backdate this – there are several powers that have been granted to security officials. For one, it is now legal for any security official to use force against a person – after prior warning – who is set to commit a ‘scheduled offence’ [a list is on the last page of the ordinance]. The law also authorizes designated government officers to issue a 90-day detention order “if there are grounds to infer that such person is acting in a manner prejudicial to the integrity, security, defense of Pakistan or any part thereof, or external affairs of Pakistan, or public order or maintenance of supplies and services.”
The definition of
someone ‘acting in a manner prejudicial to the integrity of Pakistan’ is not
specified in the document, though the scheduled offences are one indication of what that means.
The Constitution of Pakistan lays out a process for what transpires after someone has been detained: suspects have the right to legal representation and must be presented in court after 24 hours of being detained. However, Article 10 of the Constitution says these rights to not apply to people who are arrested or detained under laws providing for preventive detention. Does the ‘Protection of Pakistan Ordinance’ count as one? The constitution, however, does state that even with preventive detention laws, a review board must take up the case after 90 days.
Security officials are now also authorized to arrest someone without a warrant, as well as conduct searches and confiscate property, possessions et al without a warrant.
The government is also authorized by the ordinance to decide where the investigation of a case takes place and where legal proceedings will be held.
The ordinance also authorizes setting up special courts, which will have the authority to try and sentence suspects accused under other sections of the law than the Protection of Pakistan Ordinance.
Suspects arrested under the ordinance will be “presumed to be engaged in waging war or insurrection against Pakistan” until they can prove their innocence.
The law also protects legal and security officials. “No member of the police, armed forces or civil armed forces acting in aid of civil authority, Prosecutor General, prosecutor, Special Judicial Magistrates or the Judge of a Special Court shall be liable to any action for the acts done in good faith during the performance of their duties.”
Imagine the scenario: Security officials enter your home, arrest you without a warrant, search your property, keep you in detention, the trial is held in a different place from where you lived and you are considered guilty of waging war until you can prove you are innocent.
This may be the worst-case scenario. Or there could be worse. You may never get a chance to prove you are innocent because the security officials may have used force against you already. Or perhaps there is evidence against you: culled from physical and electronic surveillance authorized by the government under the Fair Trial Act.
This may not be what transpires. But what if it does?
For an understanding of what the impact of these laws are, take a look at Amnesty International’s 2012 report that studied the impact of detentions under the Actions in Aid of Civil Power Regulations (abbreviated as AACPR below) of 2011. The report is worth reading in its entirety for just how the ordinance played out, but here’s an extract:
The Pakistani authorities must also repeal the AACPR and repeal or reform the FCR in line with international human rights standards. As detailed in this report, the AACPR is in breach of so many human rights standards, and facilitates continued violations of human rights in practice, that it is beyond reform. The AACPR is, in addition, a threat to human rights and rule of law across Pakistan because, as starkly evidenced by the ‘Adiala 11’ case, the Armed Forces are in some circumstances seeking to justify arbitrary and unlawful detentions and enforced disappearances anywhere in the country under it. Furthermore, the continued application of the AACPR and its broad arrest and detention powers undermines the rule of law, rather than encouraging the authorities to improve upon and enforce Pakistan’s regular criminal justice system. As noted above, the regular criminal justice system does not meet international human rights standards on several grounds, but it does provide a range of important human rights safeguards that must be enforced and strengthened in line with those standards.
further this to also make another point: Pakistan already has a set of laws in
place that cover criminal offences, specifically terrorism. And while
prosecution rates are low, people have and continue to be investigated and
tried by anti-terrorism courts. The Anti-Terrorism Act – which has also been
amended by the current and past government – needs reform. But the more
pressing issue is that the current laws in place – including the Pakistan Penal
Code and the Code of Criminal Procedure - are not being implemented or enforced
properly. Adding on more legalese is a stop-gap measure but does nothing to fix
the problems with the justice system in the first place, and in the process,
sets a precedent that will be hard to backtrack from.