The right to rights

The PTI regime in Khyber Pakhtunkhwa surreptitiously promulgated KP Actions (In Aid of Civil Power) Ordinance, 2019 on August 5 and is now using it to justify holding up citizens in internment centres in the province in the aftermath of Fata’s merger with KP. The law’s predecessors, Actions (In Aid of Civil Power) Regulations for Fata and Pata, were put in place in 2011 under the PPP and ANP’s watch. They were justified as extraordinary measures in a war-like situation where the security apparatus was fighting the TTP and couldn’t abide by ordinary peacetime policing structures.

The argument was that our legal regime didn’t envisage armed aggression from within and cases of arbitrary arrest and missing people were on the rise due to lack of effective legal instruments to deal with insurgents fighting the state. Those captured during military operations couldn’t be produced before courts within the prescribed legal period and were also needed for inquisition to assist ongoing ops. Thus there was need to tweak the legal regime and create room for detention and interrogation of insurgents, which the Fata/Pata regulations did.

The 2011 Fata/Pata Regulations essentially created rights-free zones and set aside protections available to citizens against arbitrary arrest and detention, invasion of privacy of home as well as those protections that were in favour of right to fair trial etc. This didn’t bother many of us for they see Fata and Pata as our wild west, home to primitive people who can be denied full citizenship rights and entitlements. At the time the Anti-terrorism Act was also amended and the Fair Trial Act and Protection of Pakistan Act promulgated to make room for security ops across the ‘mainland’ as well.

The argument wasn’t that these legal changes didn’t dilute the fundamental rights of citizens – but that extraordinary times called for extraordinary measures. Post-APS even this faint wish to carve a legal regime for such ops within existing constitutional parameters disappeared. Parliament sponsored military courts and the judiciary then blessed them. But the sunset clauses for the military courts (and also for the Protection of Pakistan Act) suggested that a war approach to criminal justice was a temporary measure.

What then justifies introduction of this ordinance across KP in 2019, especially since our state has proclaimed victory in the war on terror and declared that things are now under control? What should it mean except that those extraordinary circumstances which necessitated extraordinary measures are under control? Has this meant no more missing people, no more folks locked up in internment camps? Doesn’t KP’s Actions (In Aid Of Civil Power) Ordinance suggest that taking away fundamental rights is the state’s go-to strategy for ease of doing its business?

Article 245 of the constitution states that the military shall… “subject to law, act in aid of civil power when called upon to do so.” In any event both Article 245 and the Federal Legislative List vest exclusive jurisdiction in relation to employing military in aid of civil power, regulating preventive detention and persons subject to preventive detention in the federation and not the province. The aid to civil power is “subject to law”. While Article 245 ousts the jurisdiction of high courts in relation to areas where the military is acting in aid of civil power, this is conceived as a transient arrangement.

You cannot disable the machinery for enforcement of fundamental rights and cripple constitutional guarantees by simply legislating that from here on civil power across the country will be aided thus on a permanent basis. The military acting as the foremost law enforcement and investigation agency is a de-facto condition. KP’s promulgation of the ordinance shows us to be so comfortable with de facto taking the driving seat, we have no patience for de jure structures.

We might not have been ready for the storm the post-9/11 world kicked up in our region or the situation the TTP insurgency created. But even that latter event is now over a decade old. If we still need internment centres across KP, it’s obvious that the distinction between de facto and de jure has evaporated. The behavioural issue afflicting decision-makers is that Pakistan doesn’t like empirical evidence.

Starting from the 1970s, we have opted for special courts and tribunals and extraordinary procedures when confronted with violence or terror. The story hasn’t been one of success, to put it mildly. But we insist that there is no problem with the design of our preferred solution. It just isn’t getting implemented properly. If a solution is exceedingly hard to implement, doesn’t that itself highlight the design issue?

Disregard for citizens’ rights by power elites is a product of normative behaviour. Writing about fetters on free speech, Salman Raja recently argued that the theory of constitutional exceptionalism has gained ground in Pakistan – that is: it is said that so unique are our conditions that we can’t be afforded freedoms others take for granted. The idea that fundamental rights are inalienable entitlements that are preordained and can’t be taken away hasn’t found favour with us. Our right to rights is viewed as a luxury to be withdrawn on mere suspicion of bad behaviour.

Look at KP’s Actions (In Aid Of Civil Power) Ordinance for example. Our law says that public office-holders wield no arbitrary authority. It also guarantees protection against arbitrary arrest and detention. The KP ordinance legitimizes arbitrary arrest and incarceration. Our law says no one’s liberty can be fettered without a fair trial. The KP ordinance allows locking citizens up on suspicion without giving reasons, without putting them before a judge or affording them a lawyer and allows admitting statement of security officials as evidence.

There was a time not long ago when the right to fair trial wasn’t part of our constitution. But our courts read right to natural justice into every statute. They held that it was their obligation to expand the scope of fundamental rights. That was then. Since Article 10A becoming part of our fundamental law, we’ve seen carve-outs to it being legitimized. Whether it is suspected terrorists being locked up indefinitely or those suspected of being corrupt hauled up by NAB, we have yet to see jurisprudence breathe life into the right to liberty and fair trial.

In the past, breach of rights was largely due to the gap between law and its enforcement. In view of ‘Mehram Ali’ (where the SC struck down provisions of Anti-Terrorism Act for being ultra vires the constitution in 1999) one would argue that there is no room for ordinance of the kind being discussed. But in view of 21st Amendment cases, where the SC’s ruling justified military courts as not being offensive to fundamental rights or separation of powers, it is arguable that breach of rights isn’t due to disregard of the law but enabled by its content.

From the court’s obligation to protect citizens’ fundamental rights from an overbearing state to protecting the state from citizens perceived as hoodlums, from requiring the state to pursue its legitimate objects in a manner least restrictive of fundamental rights to placing onus of proof on citizens to adduce evidence proving that the state is acting unfairly, we have been transported into an age of contraction of rights. It seems that our architect of the law and the law’s protectors have also internalized the de-facto-de jure logic peculiar to us.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu