Last week I wrote about a draconian new law titled Actions (in Aid of Civil Power) Regulation, 2011 for FATA. The law, among other things, gives the Governor of KPK the power to designate any area as a ‘defined area’ where the military can step in to take actions ‘in aid of civil power’. The law gives hair-raising powers to the military and the most dangerous of these is the power to detain any individual whenever it appears that detention of that person is expedient for peace in the area. There is, from a bare reading of the law, no limit on the number of days for which the military may detain/intern individuals. No judicial forum has any role in this whole process and the law does not provide for access to any legal assistance. Unless the law as a whole is challenged before the superior courts of Pakistan, there is little prospect of any humane outcome in this whole exercise.
Whenever governments enact or promulgate oppressive laws, they do so with an exercise in sugar-coating the otherwise naked acts of repression. The latest regulations made applicable to FATA follow a similarly charming trend. The place where individuals will serve their period of, apparently unlimited, interment is to be called a Merriment Centre. When it comes to names, Pakistan surely cannot be accused of lacking inventiveness. A body called the Oversight Board is to be established under section 14 of the latest Regulations. Each Oversight Board is to consist of two military officers and two civilians who have been charged with the duty of ensuring that no torture, degrading or inhumane treatment is meted out to individuals interned at the Merriment Centre. The regulations make no mention of the required training for members of the Oversight Board or who they will be accountable to.
Faith definitely has its place in life but blind faith in two military and two civilian officers when dealing with detained individuals in a restive area has little, if any, virtue to speak of. Although the regulations make no provision for the training of individuals serving on these Oversight Boards the law, quite astoundingly, expects these individuals to impart training regarding human rights to ‘all concerned officials’ of the interning authority. However, since members of the Oversight Board are not responsible or accountable to anyone, a failure to perform their duties carries no apparent consequences. This again, of course, is to the detriment to the fundamental human and constitutional rights of the unfortunate souls facing detention/internment.
Interestingly enough, the regulations specifically prohibit torture. It is not at all clear why this provision was inserted even though the Constitution of Pakistan specifically prohibits torture. But since words in a constitution are just words until they are internalised and practiced, even that specific constitutional command has had little application in our country. Inserting a specific provision against torture into a draconian law may win high points for sugar coating but it surely does not alleviate any fears against abuse of state power.
Continuing with sugar coating, the regulations provide that the Interning Authority ‘may’ (therefore this is not mandatory but a matter of discretion/whims) provide psychological and religious counseling to detainees. The regulations make provision for individuals being charged with a punishable offence where there is suspicion that an individual is challenging the writ of the Federal Government. Any attempted actions threatening the ‘peace, safety or defence of Pakistan’ shall also be punishable. Even though the law, in theory, is applicable only to FATA, it provides for individuals being charged under various provisions of the Frontier Crimes Regulations, 1901, Code of Criminal Procedure 1898 or the Anti-Terrorism Act 1997 ‘as the case may be’. Therefore, this law can be stretched to punish people all over Pakistan with death or life imprisonment if any of the plethora of offences provided under these regulations is found to have been committed.
Another most significant aspect of the law is that with one stroke of the executive’s pen it seeks to close the door on the hope of any relevant investigations following extra-judicial actions in FATA. The regulations provide that ‘Anything done, action taken, orders passed, proceedings initiated, processes or communication issued, powers conferred, assumed or exercised, by the Armed Forces or its members duly authorised in this behalf, on or after the 1st February, 2008 and before the commencement of this Regulation, shall be deemed to have been validly done’. Therefore, all actions taken on or after the 1st of February, 2008 become immune from scrutiny.
Therefore, the latest regulations extinguish the promise of any justice – be it linked to future actions or those already carried out. Every crisis in a country is also a test of its national character and of its willingness to remain faithful to certain cherished ideals.
Must we turn into a nation that only follows principles when convenient? The most common retort would be that many in the world have reacted to crises by trampling upon their own ideals. But we don’t have to emulate the wrongs of others. For the sake of the blemishes that exist already on our national conscience, our collective character and for the sake of our children, we must aim to be better than we are.
The writer is a Barrister and an Advocate of the High Courts. He has a special interest in Antitrust law and is currently pursuing an LLM at a law school in Cambridge, Massachusetts.
