PAKISTAN: New draconian laws provide legal cover to disappearances, extrajudicial killings, torture, & unfair trial
The government of Pakistan has – within a short period of less than two weeks – promulgated two draconian laws, ostensibly, to combat terrorism.
The first ordinance was promulgated on October 11. It has amended the Anti-Terrorist Act, 1997, and curtailed fundamental rights of citizens. Now the government has gone ahead and promulgated another ordinance on October 20. This one is called "Pakistan Protection Ordinance." It hands even greater powers to law enforcement authorities (LEA). Now LEA can enter and search any premises without warrant and confiscate any property without permission from any lawful authority.
The ill intentions of the government have not been disguised. Parliament, and thereby open debate on the provisions of law, has been avoided to unilaterally push through these decisions. Both ordinances are manifestly ultra virus and unconstitutional.
The October 11 ordinance, which amends the Anti-Terrorist Act, 1997, provides extraordinary powers to LEA. It allows LEA to detain suspects up to three months, and thereby to curb the process of fair trial by such long detention. It allows for conviction on the basis of incriminating text messages, phone calls, and email. It grants LEA powers to shoot at sight. Telephones and internet facilities can be freely tapped and monitored. The ordinance has become a grave threat to right to privacy.
The October 20 ordinance, 'Pakistan Protection ordinance', covers issues related to the security of the people and attempts to clamp down on anti-state elements with swift justice and timely LEA action. This ordinance allows the constitution of joint investigation teams so investigations by security agencies and police can be conducted in all heinous crimes.
The October 11 ordinance was issued by the President of Pakistan while he was travelling in Saudi Arabia, whereas official copies of the October 20 ordinance have not been provided to the media. The presidential secretariat has only disclosed its key features and justification, in a detailed hand out to the media.
The Daily Dawn, quoting official sources, has reported that under the October 20 ordinance, LEA – including police, military and para-military forces, Pakistan rangers, Frontier Corp and Frontier Constabulary – would be able to enter and search any premises without warrant. The arrested suspects would not be entitled to bail. These forces, on suspicion, can confiscate property, arms, and other household goods without permission from any lawful authority. And anyone found guilty of resisting enforcement of law or legal process will spend 10 years behind bars.
Separate police stations will be designated for professional and expeditious investigations of specified crime. The cases will be prosecuted by federal prosecutors – a new force of prosecutors will be created, parallel to the existing prosecution branch. And special jails have been designated to detain hardened criminals.
The government has been authorised to create a parallel judiciary through these ordinances. Anti-Terrorist Courts and special prosecutors for terrorist crimes are already in operation. However, through the October 20 'Pakistan Protection Ordinance', the government will make "special courts and special prosecutors" to protect the country. By issuing these ordinances, the government has made the courts under the constitution as redundant.
LEAs have also been given authority to violate provincial autonomy, awarded to the provinces through the 18th amendment to the constitution. The ordinances now allow the federation to intervene in provincial affairs to provide complete protection to LEA. They provide legal cover for encroachment on provincial autonomy in the name of 'protection of Pakistan'.
The government has justified the promulgation of both ordinances by citing the increasing incidents of terrorism, the need to address delays in trial, the need to restore the security of the people and LEA personnel, and the need to clamp down on anti-state elements with swift justice and timely action on the part of the LEA.
The promulgation of ordinances has been a usual practice of Pakistan's past military governments, abrogating the constitution. Civilian governments have, however, also tried to issue such ordinances to avoid a lengthy parliamentary debate. Ordinances take immediate effect, ideal for an autocratic way of governance.
Through these ordinances, the government has in effect given legal protection to the rampant practices of disappearances and extrajudicial killings in Pakistan. Disappearances and extrajudicial killings are at alarming levels in Pakistan. Since the year 2000, hundreds of people are missing. Similar numbers of people have been killed extrajudicially in detention centres, torture cells, and in the open. Extrajudicial killings by LEAs are a routine practice, used without compunction by the police, Frontier Corps, and Pakistan Rangers. Providing greater powers through the two ordinances "to restore sense of security, overarching issues related to the security of the people and swift justice", now means that nobody in Pakistan is safe from LEAs.
Both the ordinances are in blatant violation of the Pakistan constitution, particularly Article 8 of the constitution, which states the following:
Laws inconsistent with or in derogation of fundamental rights to be void;
(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
The ordinances are also against the Article 24, which guarantees the rights of property and denies the right of the government to confiscate any lawful property.
Article 10 of the constitution, providing safeguard to arrest and detention states:
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in :custody beyond the said period without the authority of a magistrate.
The right to fair trial is also guaranteed in the constitution. But these ordinances are fundamentally against fair trial. Article 10 A of the constitution states:
For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
The government, instead of reforming its criminal justice system to enable speedy trial, fair investigation, and proper prosecution, has given inordinate power to police, military, and other law enforcement agencies to restrict fundamental rights of the people in the name of fighting terrorism.
In light of this, the government of Pakistan must withdraw the ordinances and bring the bills before the parliament for open debate. The government must respect the process of fair trial and rule of law rather than resorting to making draconian laws which curtail the fundamental and constitutional rights of the people. It must also understand that by making draconian laws terrorism cannot be overcome. Rather it will generate more terrorism in different forms. The ordinances are not lawful. The promulgation of the two ordinances negate all procedural guarantees in the Criminal Procedure Code and the constitution.
The civil society of Pakistan should own this moment and challenge the constitutional validity of these ordinances and until then must seek judicial intervention to stay the operations of the ordinances. The courts must decide whether Pakistan should continue to be smothered by executive orders or whether the executive writ is also subject to parliamentary supervision.