Maybe we as a nation have a rare and unenviable talent for elevating the irrelevant and ignoring that which is pertinent. There is astonishingly little critique of a most draconian new law titled ‘Actions (in Aid of Civil Power) Regulation, 2011 for FATA’. Apart from a brave reporter who works for this very newspaper, I have found none.
FATA of course refers to the Federally Administered Tribal Areas of Pakistan which have been a hotbed of militant extremism and training camps associated with such violent ideology. No one in her right mind would argue that there isn’t a problem brewing in FATA. There is a real problem and it needs to be dealt with. The question is what are the lengths to which we will go to solve a dangerous problem and what are the limits (moral as well as constitutional) that we are willing to cross?
The Constitution of Pakistan allows the federal government to direct the armed forces of Pakistan ‘to act in aid of civil power when called upon to do so’. In theory, the constitution does not envisage judicial review of any such direction by the federal government as Article 245 (2) states that ‘the validity of any such direction by the federal government shall not be called in question in any court’. The constitution also envisages that the president may make regulations with respect to any matter ‘for the peace and good government’ of the whole or a part of FATA. It is this power that the president relied upon to issue the latest regulations.
Although, generally, the preamble of a statute is not controlling when it comes to its meaning, it can reveal a lot when it comes to intentions. The preamble of the 2011 Regulations states that it is ‘imperative that proper authorization be given to the armed forces to take certain measures for incapacitating the miscreants by interning them during the continuation of the actions in aid of civil power’. Furthermore, the 2011 Regulations have been given retrospective effect and have been deemed to have taken effect from the 1st of February, 2008.
This draconian new law creates the spectre of a counter-insurgency strategy that is purportedly in compliance with legal and ethical norms but it achieves neither. It allows any authorised officer of the military or even civil armed forces to detain any person whose internment is ‘expedient for peace’ in the defined area — the defined area is any area defined by the governor of the province and is a reference to areas where the armed forces are acting in aid of civil power. The duration of any such internment is apparently limitless as these regulations themselves provide that the power to intern shall be valid from the day that these regulations take effect till the continuation of actions in aid of civil power. The range of situations which can result in someone being picked up for internment is extremely wide. It covers everyone from persons who ‘may obstruct actions in aid of civil power’ to an individual who ‘by any action or attempt may cause a threat to the security of Pakistan’ as well as anyone who ‘has committed or is likely to commit an offence’ under these regulations.
The range of powers given to the governor of KPK and, thanks to the ability to delegate, to any authorised officer of the armed forces is quite simply ridiculous and an ever-present threat to the constitutional rights and civil liberties of people living particularly in FATA and generally throughout Pakistan. What legal remedy will victims of internment be left with? There is depressingly little to be optimistic about on that front. Firstly, the constitution itself states neither the Supreme Court nor a High Court shall exercise any jurisdiction under the constitution in relation to a tribal area unless parliament passes a law to that effect.
Even though Pakistan has, for better or worse, an increasingly activist judiciary there is not much in theory that helps victims of internment. The ‘Interning Authority’ under the Regulations 2011 may by itself or on a request (from the victim or his relatives) review the case of the person being held. Nothing in the law mentions the right to be heard in person or to be represented by a lawyer. After such a review, the Interning Authority can simply deny your request (and continue to detain you), set you free or keep you detained till the end of the actions in aid of civil power after which you will be handed over to the law enforcement agencies ‘for formal prosecution’.
As I will detail next week, the range of this law is not just limited to FATA but potentially covers all of Pakistan. The Constitution of Pakistan provides for the right to a fair trial and the right to be represented by a lawyer. Even in case of laws aimed at preventive detention, Article 10(4) of the Constitution prohibits any law that provides for a detention period exceeding three months unless a detainee is heard in person by a review board. This review board is to be appointed by the Chief Justice of Pakistan and is to consist of a Chairman and two present or retired Justices of the High Courts or the Supreme Court.
The 2011 FATA Regulations are susceptible to powerful constitutional challenges and these must be mounted. But before, that we must wake up to the fact that a draconian new law is here.
The writer is a Barrister and has a special interest in Anti-trust/Competition law. He can be reached at [email protected]