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Wednesday December 01, 2021

Flawed legislation

August 28, 2019

In the aftermath of the APS attack in 2014, our government introduced legislation to regulate rented premises in the four provinces. However, these laws have been nagging citizens of Pakistan for the past several years.

The rationale behind these laws was to curb terrorism by requiring the filing of information about temporary residents with the police. All the provinces have promulgated somewhat similar laws, though the laws in Balochistan and Khyber Pakhtunkhwa are more stringent. These laws include: the Balochistan Restrictions of Rented Buildings (Security) Act 2015, the Khyber Pakhtunkhwa Restriction of Rented Buildings (Security) Act 2014, the Punjab Information of Temporary Residence Act 2015, and the Sindh Information of Temporary Residence Act 2015.

These tenancy laws primarily require landlords, lessees, hotel managers and property dealers to provide information to the police about their tenants or guests in order to counter terrorism by tracing suspects. In Punjab and Islamabad, landlords and tenants can provide the required information by filing forms o-line. Non-compliance of these laws entails penal consequences of imprisonment (from six months to one year) and/or fine (up to Rs100,000).

While the objective of these laws – to develop a central database system to combat terrorism – is legitimate, it is the mechanism for the enforcement of these laws which is questionable because it leaves ordinary citizens at the mercy of the police with unfettered powers to arrest suspected violators of these laws by entering into rented premises. The police can enter into rented premises anytime and without taking any warrant from the court. These aspects of the law violate the ‘dignity of man’ and the ‘privacy of home’ which are protected as fundamental rights under our constitution (Articles 9 and 14).

As if the powers of the police to arrest without warrant were not enough, these laws have gone to the extent of declaring non-compliance a non-bailable offence. Under criminal law jurisprudence, non-bailable offences are, in fact, offences of a ‘serious’ nature. Further, courts are generally strict in granting bail in a ‘non-bailable’ offence. It may be noted that under these laws police can arrest a person/tenant/landlord merely for not informing the police of the tenancy. The arrest of citizens (as happened in the case of columnist Irfan Siddiqui) even without sufficient evidence for their involvement in a serious offence makes these laws arbitrary and unreasonable.

In Balochistan and KP, police officers or any other persons acting under these laws have been indemnified from any suit or legal proceedings, provided they have acted in ‘good faith’. Such arbitrary powers must not be granted to the police without appropriate safeguards. Our legislature and courts need to ensure that the police do not abuse their authority under these provisions. It is reassuring that in the few reported cases our courts have checked the transgression of police authorities under these laws. For example, in Bashir Ahmed v the State (2016 Pakistan Criminal Law Journal 1007 Lahore), the Lahore High Court acquitted the accused who allegedly failed to provide information of his tenant to the police. In its judgment, the court observed that the police should summon the accused with prior notice before the arrest and make sure about the ownership of the premises and the existence of the tenancy.

Given the current shape and scope of these laws, the chances of their becoming a tool for the violation of the liberty, dignity and privacy of the citizens are very high. These laws empower the police to inspect rented buildings anytime. If constitutional protections are allowed to be violated at the pretext of national security, it would put the liberty and privacy of the people at risk.

The state and its citizens should fight against the menace of terrorism. In doing so, however, the fundamental right to the liberty, dignity and privacy must be protected. Therefore, the above-mentioned laws should be amended to provide safeguards for the protection of innocent citizens from the high handedness of law-enforcement agencies. One such safeguard is to make the less serious offences under these laws non-cognizable and bailable. Secondly, non-compliance with the provisions of these laws should lead to the imposition of fines only. The punishment of imprisonment should be removed unless there is evidence for the actual involvement of landlords/managers/property dealers in the conduct of serious offence like terrorism which has already been dealt with under the relevant laws.

Muhammad Zubair Abbasi is an associate professor of law at LUMS. Zia Ullah Ranjah is an advocate based in Lahore.