Legal eye
The writer is a lawyer based in Islamabad.
The controversy surrounding the Rangers’ powers in Karachi falls across the civil-military fault-line of Pakistani politics and not the centre-province fault-line as the Sindh government suggests.
It strains credulity to suppose that the PPP, aided by its deft legal wizards (who also led the overhaul of the constitution through the 18th Amendment), is unable to comprehend the meaning of our fundamental law as it stands today. Is the PPP being coy about its real problem with the Rangers’ use or ‘misuse’ of authority in Sindh?
Contrary to popular misconception, law and order have never been exclusive provincial subjects. Prior to the 18th Amendment, they fell within the concurrent list that allowed both the centre and the provinces to legislate on matters related to criminal law. The Anti-Terrorism Act 1997 came before the 18th Amendment and was a federal law. So was the Police Order 2002, which remains a valid law.
The 18th Amendment deleted the concurrent list. Thus, legislative subjects that previously fell within the concurrent legislative competence of parliament and provincial assemblies now fell within the exclusive domain of provinces. But not criminal law, criminal procedure and evidence. Parliament, which authored the 18th Amendment, explicitly retained these three matters within concurrent legislative jurisdiction of the federation and the provinces by including them in Article 142(b) of the constitution.
The nature of federalism that our constitution adheres to is cooperative and not dual (ie federal and provincial governments are expected to work together contrary to the model of dual federalism wherein federal and provincial governments are seen as independent and equal pillars). In case of a conflict between a federal and provincial law, the federal law prevails to the extent of any inconsistency. And Article 97 explains that the centre’s executive authority extends to all matters in relation to which parliament is authorised to make laws.
In other words, in view of Article 142(b), read together with Article 97 and Section 4 of the ATA, while the provincial government needs the federal government’s consent to seek deployment of armed forces/civilian armed forces within the province (and seek ratification of delegation of authority from the provincial assembly under Article 147), the federal government needs no such consent from a province before ordering deployment of forces should it deem it necessary for prevention of terrorism.
The Sindh government’s understanding of how Article 147 works is wrong as well. Under Article 147 consultation regarding conditions to be imposed while delegating provincial authority to the federation has to be between the provincial and federal governments. Only once the federal government consents to conditional delegation of authority is the matter to be taken to the provincial legislature for its ratification, within six months of such delegation. If the federal government refuses, there is nothing for the provincial assembly to ratify.
The constitution also doesn’t delegate to a provincial government the authority to alter federal legislation under the garb of imposing conditions pursuant to Article 147. Providing for such alteration would be contrary to the constitutional scheme of separation of executive and legislative authority and granting ascendency to federal laws over provincial laws. The logical reading of Section 4 of the ATA is that if a provincial government initiates a request for deployment of forces, the conditions it can impose can be with regard to areas where forces are to be deployed and the size of the required forces.
Where the federal government issues a notification under Section 4(1) of the ATA to deploy forces in a province in its own discretion, the question of consent of provincial government or ratification by provincial assembly under Article 147 doesn’t arise. This makes ample common sense. Where a province needs federal help, the federal government must agree to provide such help. But where the federal government is exercising its authority to deploy federal forces under a valid federal law, the province has no veto rights.
The FIA Act 1974, ATA 1997, NAB Ordinance 1999, Fair Trial Act 2013 and Protection of Pakistan Act 2014 are all federal criminal laws effective across Pakistan and not subject to a veto by provinces. And such constitutional and legislative framework isn’t absurd. Terror networks cut across provincial boundaries and must be tackled nationally. Even states such as the US, that might be closer to the dual model of federalism, treat terrorism as a federal subject and allow federal agencies such as the FBI to exercise jurisdiction in relation to terror.
The other argument we hear in relation to the Rangers’ debate is that political accountability is a substitute to legal accountability – ie so long as political parties enjoy public mandate they have a right to continue to make hay. In other words, if people are fine with parties rearing terrorists or graft-ridden leaders so be it. This argument is as bogus as one made by proponents of controlled democracy – that is, questioning misuse of authority by khakis or talk of holding them accountable depresses the morale of the troops and becomes a national security threat.
No one should be able to disregard the law. Not corrupt politicos draped in public mandate. And not overreaching do-good khakis drenched in the saviour zeal. It should be clear to anyone who hasn’t blindly picked a side that the Rangers overreached when they began conducting raids to clean up graft along with terror to deliver a two-in-one gift to a nation the khakis believe only they can save. Dr Asim Hussain may have done many rotten things. But events since his arrest suggest that he hasn’t been found to be mixed with terror.
So why then is the federal government siding with the khakis (read: Rangers) on this matter? Because Nawaz Sharif understands full well that siding with tainted politicos in Sindh will transform the Rangers’ controversy into a full-blown civil-military conflict at a time when the only possible threat to his rule can come from the khakis. 2016 is the year of change of command within the army. This is no time for taking chances. If khakis have overreached, why not request them privately and politely to abstain in the future?
Standing beside the PPP as it publicly attempts to clip the Rangers’ wings would fuel the narrative that the no-good, corrupt, terror-sympathising politicos have joined hands to dishonour martyrs and prevent the khakis from keeping this miserable nation safe. Would Zardari have picked a different side had he been in Nawaz Sharif’s shoes? Was it not he who taught by example during his term in office that democratic continuity is contingent on weak civilian governments not locking horns with the military?
The stakes for Zardari are high and if doesn’t create enough of a fuss there could be a repeat incident. His fear probably is that with the use of overbroad anti-terror powers, the khakis could be planning to alter the political landscape of Sindh to nurture credible competitors to loosen the PPP’s stranglehold. And if the dumb-headed public can’t be weaned off its PPP dependence despite bad deeds being exposed, reliance on the evergreen minus-one formula would be the fall-back option. In the MQM’s case there is the Imran Farooq case. For a change of guard in the PPP, someone like Dr Asim Hussain would need to sing.
The three takeaways from the Rangers’ controversy are: One, the military has very limited ability to shape the political landscape of a province or the country. Two, overbroad powers vested in security forces in the name of terror will remain susceptible to abuse. And three, unless there is across-the-board accountability for breach of law, which isn’t disrupted in the name of national security when a general is in the dock or democratic continuity when a politico is in question, there can be no effective accountability.
Sadly, for now, our political and military elites are both averse to opening themselves to accountability.
Email: sattar@post.harvard.edu
