Legal detention framework through legislation has effectively saved lives
To balance the compulsions of national security with human rights and to make sure that the missing persons issue is resolved the only way out is to make a specific legislation in this regard. This is what even the Supreme Court has suggested. We have a precedent in the nature of Action in Aid of Civil Power Regulations (AACPR) 2011 done primarily for FATA & PATA which has demonstrated that once the security agencies during military operations are convinced that the miscreants can be parked during the conflict without the fear of being bailed out, then they refrain from any enforced disappearances tactics.
In other words a legal detention framework through legislation has effectively saved lives. A leading professor of international law at the Geneva University once told me that detention framework during armed actions reduces temptation for extra-judicial measures. This is quite true. It will be noted that after 2011 when AACPR were enacted the complaints of missing persons have dramatically decreased. All missing persons are being ‘discovered’ from internment centers or taken to internment centres. Most of the existing complaints relating to missing persons are pre-2011, when there was no internment framework.
I have been advocating that there is a need for internment law framework for the entire country as well that should not be confined to FATA & PATA. In this regard there are two approaches, firstly in areas where armed forces are called in aid of civil power and during the duration of the notification under Article 245, legislation can be made which permits internment. The case in point is Karachi where Rangers have been called in aid of civil power. Over 7,000 people have been arrested. Internment regime could have been introduced to park these miscreants during the duration of this operation.
‘Solutions for enactment to resolve the stigma of missing persons within the constitution are available. Government’s attention and some innovation can bring out these solutions.’
Instead an amendment was brought in ATA to retain people up to 90 days. This means that the government has created an enormous burden for itself to arrange for prosecution of 7000-plus persons within 90 days, which it simply cannot. And as a consequence, they will soon be liable to be released and the gains made on ground will be lost in the courts.
Therefore it is proposed that a federal legislation for internment should be enacted which switches on the moment a notification under Article 245 or Section 4 of ATA is issued and switches off when the said notifications are withdrawn. Such legislation is permissible under Article 245 as being the law to which the armed forces will be subject to. Further under Article 245 fundamental rights cannot be enforced by the high courts and it is during this constitutional pause in the enforcement of fundamental rights that federal internment law will operate.
‘It is proposed that a federal legislation for internment should be enacted which switches on the moment a notification under Article 245 or Section 4 of ATA is issued and switches off when the said notifications are withdrawn.’
The other objection is whether such a law can be invoked when there is no operation in aid of civil power going on because then the jurisdiction of Article 199 is available with full force alongwith Article 10. The answer is in affirmative. It should be remembered that Article 8 permits making of such legislation for the armed forces or police that is necessary to restore public order and to enable them to perform their functions. Therefore this legal space available in Article 8 can be explored. Law that is within this space can be made in derogation of Article 10 and even Article 10-A of the constitution.
In the event that the same is not possible alternatively article 10 can be amended and there are already voices being raised for it – foremost among these a suggestion put forth by the KPK chief justice during a judicial function in that province.
To conclude it can be stated that solutions for enactment to resolve the stigma of missing persons within the constitution are available. Government’s attention and some innovation can bring out these solutions.
The write is Advocate Supreme Court and former Caretaker Federal Law Minister. He can be contacted at: [email protected].