Sunday December 05, 2021

Challenge through law

February 08, 2020

To paraphrase historian Ayesha Jalal on the strategy used by Asma Jahangir to fight oppression and promote human rights; she used the power of law.

In other words, according to Professor Jalal, Asma was not any other starry-eyed idealist, she consciously used her profession of law as a tool to advance her causes and that is why she was often successful.

Though one is not in favour of judicialization of politics, it might be necessary to approach the higher judiciary on two important fronts that afflict the political/civil space in Pakistan today: the overreach of the National Accountability Bureau (NAB), and the over-use of the sedition charges to stifle dissent.

The fact is that both the main opposition parties have been brought to their knees by the accountability witch-hunt. While we armchair critics can talk of political ideals, these political parties have borne the brunt. They have been gravely weakened.

Particularly since 2016, rule of law is being used as a tool against political parties and dissent in Pakistan. All concerned citizens want the corrupt to be punished according to the land of the law. However, there is a perception that corruption is not the real issue and corruption may just still be a problem among the rulers.

With NAB’s unlimited powers of arrest and detention for long periods of time without any charges being formally framed and its ability to prevent the Accountability Courts to grant bail, it has acted as high-handedness personified. At one point, it had two elected prime ministers and an elected president behind bars at the same time.

The NAB law has recently been amended through an ordinance. However, the newly amended ordinance only gives relief to bureaucrats and business (private) persons. According to press reports, NAB still has the powers to arrest anyone at any stage of inquiry and detain a suspect for 90 days. Accountability Courts do not have power to grant bail. Article 9 of the constitution protects the liberty of citizens. NAB’s powers to arrest and hold the suspect under detention for such a long period of time may be a violation of the fundamental right ensured under the constitution and it must be challenged in the superior courts on that ground.

According to press reports, Justice Mushir Alam of the SC inquired a few weeks back why NAB is not able to complete a reference on the basis of collection of evidence and then arrest the suspect rather than the other way round. Even the chief justice of Pakistan has reportedly questioned the role of NAB.

Similarly, sedition charges are being used excessively against peaceful protesters to stifle dissent. Sedition according to the Pakistan Penal Code (ACT XLV OF 1860) is, “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the federal or provincial government established by law shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Peaceful protesters are demanding their constitutional rights through non-violent means and are in no way waging a war against the state. Critical voices do need to be heard to reform our state and to ensure the rights of the marginalized sections of society and of those belonging to deprived areas. Those concerned with human and people’s rights should approach the higher judiciary to define sedition clearly for the lower courts.

We are seeing lip service to law being used against the political parties and civil groups particularly since 2016. Political parties have become very weak and civil rights groups are on the back foot. It is time to reclaim the lost space. The judgments of the superior courts have been encouraging in this respect. We have to confront the problem at its most fundamental.

The writer is an Islamabad-based social scientist. Email: