Ijaz Ahmad, Judicial Magistrate, Pakistan
Every one of us has to abide by the rules and regulations of our society. This not only ensures our safety as individuals but also the integrity of our communities. A national constitution should serve as the guide, establishing both the rights and obligations of citizens. And indeed, the Constitution of Pakistan has introduced regulations and extended fundamental rights to its citizens intended to ensure a just and stable society. However, over the past 55 years, laws have been introduced containing provisions that negate the fundamental rights of citizens guaranteed at independence. Among these are the regulations on preventive detention in the Criminal Procedure Code.
Being part of the judiciary, I have some personal observations about the provisions of Pakistan’s criminal law, its practical application, and what can be done by way of reform. But before going into those details it is necessary to begin by noting some of the constitutional provisions alluded to above.
Fundamental rights under the Constitution
The 1973 Constitution of Pakistan makes clear that any law running contrary to its provisions shall be invalid. Under Chapter II, on fundamental rights, article 8 stipulates that
(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.
Article 8 was inserted not only to deal with legislation introduced after the Constitution, but also with those laws already in existence that violate fundamental rights. In either case, such laws would be void to the extent of the inconsistency. On preventive detention in particular, article 10.4 provides that
No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months [amended to one month in 1975] unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of [one] month, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of [one] month, that there is, in its opinion, sufficient cause for such detention.
Article 10.4, then, governs preventive detention by
- First, explaining under what circumstances preventive detention is permitted;
- Secondly, prohibiting the making of laws for preventive detention that fall outside of these circumstances;
- Thirdly, limiting the period of preventive detention to three months unless certain conditions for judicial review are met.
Preventive detention under the Criminal Procedure Code
In spite of the above directives, Pakistan’s Criminal Procedure Code (CrPC) contains sections that permit preventive detention in defiance of the Constitution.tnref1>* If the Constitution is to be followed in its true spirit then they ought to be deleted, for the police and courts following them are violating citizens’ fundamental rights. In fact, the number of arrests under preventive detention provisions now exceeds arrests for substantive offences. The lower judiciary—lacking any powers, as the power under article 199 of the Constitution lies with the High Courts—has to obey the CrPC, even if in so doing it violates the fundamental rights of an individual and acts inconsistently with the Constitution.
Chapter XIII of the CrPC, pertaining to security for keeping peace and good behaviour and preventive actions, totally negates the spirit of the Constitution as it allows a person to be locked up for failing to submit a bond. Sections 107–10 empower a magistrate to take cognizance against a person with regards to whom information has been received that this person is likely to commit a breach of the peace, disturb tranquility or do any wrongful act. Action may also be taken against such a person as conceals his or her presence for the commission of an offense or is an habitual robber, receiver of stolen property or similar. The magistrate then requires this person to show cause as to why he or she should not be ordered under section 112 to execute bonds for keeping the peace for three years in cases under sections 107, 109 & 110 and one year under section 108. The person against whom the information is received is required to submit bonds in two stages:
- First, under section 107 a bond must be submitted to keep the peace until the conclusion of an enquiry about the information;
- Secondly, under section 118 if the information is proved bonds must be submitted for the periods specified above under sections 107–10.
Under section 117, when a magistrate orders a person to furnish bonds but for whatever reasons the order is not met, this person can be kept under preventive detention and is imprisoned until all requirements are satisfied. If the enquiry is not concluded within one year, for instance, the person remains behind bars. On conclusion of the enquiry, if the information is proved correct the magistrate is bound under section 118 to ask for fresh surety. If again the person defaults, under section 123 imprisonment follows for the period for which the surety is to be given under sections 107–10. There is no provision for a person who has already been kept in preventive custody under section 117 to be exempt from imprisonment in default of a bond under section 123.
Article 10.4 of the Constitution does not mention anything about preventive detention for failure to provide a security bond. On the other hand, it has clearly ordained that any law inconsistent with the citizens’ fundamental rights is void to the extent of such inconsistency. In this case, sections 117 & 123 of the CrPC have abridged the fundamental right to freedom of movement, and should be deleted.
The criminal law relating to preventive actions also has no regard for the key legal principles of auterfois convict and auterfois acquit. Under auterfois convict, a person who has been detained for default on a security bond who later commits the offence for which he or she was preventively detained should have the period of preventive detention deducted from the subsequent sentence. Under auterfois acquit, where a magistrate has found the information leading to an initial order to be false, if the accused person later commits the offence about which the information had previously been given, this person can use the magistrate’s acquittal order in his or her defence. Neither of these principles is available to persons subject to preventive orders. The rationale for this denial is that extension of auterfois convict and auterfois acquit to persons subject to preventive actions would then give such persons a free hand to commit the offence, and proceedings under sections 107–10 would prove compelling rather than preventive.
A comparison with ‘anticipatory crimes’ under American law
Under American law, preventive actions are called ‘anticipatory crimes’. Anticipatory crimes include certain activities relating to the criminal act itself. These include attempts, solicitation and conspiracy to carry out the said act. Under American common law, the crime of attempt consists of the intent to commit an act or to bring about certain consequences that would amount to a crime, and some act in pursuance of that objective, which goes beyond mere preparation. One may not later be convicted of both the contemplated crime and an attempt to commit it: the latter is said to merge into the former. For its part, solicitation includes efforts to advise, incite, order or otherwise encourage a person to commit a crime.
In the criminal law and procedure as is in vogue in South Carolina, these acts are punishable because the persons who engage in them have shown themselves to be dangerous and must be discouraged from committing the crime in future. Also, since the anticipatory offence is itself punishable, it is permissible for the police to intervene and arrest the accused before the substantive offence has been committed. This early police intervention can save lives and property by nipping the criminal enterprise in the bud.
By contrast, under section 151 of the CrPC of Pakistan the police are empowered to make arrests without warrants if they claim to know of a design to commit any cognizable offence, irrespective of whether or not the person involved has committed any anticipatory crime. Yet legally speaking any arrest must be justified by probable cause, which means that the arrestee must have committed the crime for which he is being arrested. If a person is arrested under section 151 and the police later recover evidence suggesting that the person was guilty of the alleged crime, this recovery should be inadmissible, as evidence of probable cause must precede, not follow, the arrest. However, in Pakistan any alleged act that leads to a preventive order is treated as a substantive crime in itself, in contrast to the American law, which only knows conspiracy, attempt and solicitation as anticipatory crimes.
Conclusion
All of this leads to the conclusion that crime in Pakistan could be prevented without Chapter XIII of the CrPC, and that the provisions it contains are designed not to stop criminals but rather to harass innocent people who cannot otherwise be targeted. The framers of the Constitution explicitly banned legislation relating to preventive custody except for that permitted by the Constitution itself. Unfortunately we take things as they are. We do not pay heed to the implications.
Is the supposed prevention of crime more sacred than our fundamental rights? Then it should be written into policy that all citizens of Pakistan must furnish security bonds for their entire lives, to maintain peace and tranquility. The parents of a newborn baby would submit security on the child’s behalf until age of maturity, when the obligation would transfer to the adult person. Presumably, such a policy of absolute prevention would ensure a crime-free tranquil society. It would at least uphold the principle of equality before the law.
In law there is no crime until an offence has been committed. To oblige a person to furnish a security bond simply on the grounds of supposed information on a possible offence—and then to imprison such a person in the event of default—is unjust. The parts of the Criminal Procedure Code of Pakistan that permit such preventive actions urgently need the attention of law reformers. They must be struck down as violations of the Constitution, the cardinal principles of criminal law, auterfois convict and auterfois acquit, and Pakistani citizens’ fundamental rights.
tn1>* For further discussion on the Criminal Procedure Code, see Ijaz Ahmad, ‘Pakistan criminal law needs amendments: A proposal’, article 2, vol. 1, no. 5, October 2002, pp. 10–17.
