Friday, April 06, 2012

Criminalising Justice

Criminalising Justice

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The Action (in Aid of Civil Power) Regulation, 2011, has turned conventional wisdom on its head by declaring that intent without any act meant to carry it out is enough to constitute a crime, that an act without being backed by guilty intent can also be deemed an offence, and, further, that suspicion alone, without any corresponding act or intent, might be enough to complete a crime.

Criminalising justice-I

Legal eye

Babar Sattar
Saturday, March 03, 2012

The writer is a lawyer based in Islamabad.

What do you not do when the state fails in delivering on its basic compact
with its citizens ­ i.e., to provide them security? You don¹t give a carte
blanche to law-enforcement agencies to become judge, jury and executioner
while fighting crime and terror, thereby creating a more insidious threat to
the security of citizens you ought to guarantee. And what do you not do when
law-enforcement and intelligence agencies begin to be indicted in public
opinion with charges as grave as molesting the fundamental rights of
citizens to life, liberty and dignity that they are mandated to protect? You
don¹t trivialise the standards of justice to reduce the gap between the
theory and practice of the law and dilute the substantive and due process
protections afforded to citizens by law and the Constitution to legalise
appalling practices of state agencies, such as illegal arrests and

In enacting the Actions (in Aid of Civil Power) Regulation, 2011, this is
exactly what the PPP-led regime has done on khaki prodding. If these
regulations withstand judicial scrutiny and are deemed valid law in
Pakistan, the fundamental guarantees of the Constitution will be rendered
meaningless and the ISI and law-enforcement agencies will hardly ever be
charged with any waywardness or the proclivity for arbitrary arrests and
detentions. Further, the presumption and suspicion of guilt by intelligence
and law-enforcement agencies will be sufficient to convict the suspect. The
apologists for this loathsome piece of law-that is nothing short of an
attempt to criminalise the very concept of justice-will tell us that
Pakistan is in a state of war and we need to take extraordinary steps to
fight the miscreants. They will also hold up the US and the UK as
democracies and vanguards of human rights to be emulated and argue that
these states took similar measures in the wake of 9/11.

These arguments are false and logically flawed. First, any reference to
fundamental human rights is a conversation about such inalienable
entitlements that are the birthright of all human beings, irrespective of
how good or evil they might be. They set the floor for acceptable conduct in
relation to a human being, not the ceiling. Second, while the US and UK are
no examples to be followed in setting human rights standards, even after
9/11 their intrusion into the privacy of their citizens has been subject to
due process and judicial scrutiny. The more objectionable parts of the
Patriot Act, for example, relate to how aliens might be treated, and not US
citizens. And while US municipal law doesn¹t legitimise extraordinary
rendition and the manner in which prisoners are treated at places like
Guantanamo, even these practices of dealing with non-citizens, declared as
enemies of the state, remain highly controversial and criticised within the

A state of war neither dilutes the entitlement to fundamental human rights
nor mandates a lowering of the standards of justice to be upheld by a decent
community. Conversely, it is during such extraordinary times that the
utility of these minimal rights enforced by courts as neutral arbiters of
law kicks in. It is during wars and insurgencies when passions are running
high and military and law-enforcement agencies inadvertently become a party
to violent conflict that there is heightened need for the law to ensure that
a no innocent becomes a casualty of war, and indulgence of law-enforcement
agencies in an-eye-for-an-eye style retribution is not passed off as
justice. The 2011 regulation enacted by the president for the Federally
Administrative Tribal Areas, but essentially applicable to any citizen of
Pakistan, are loathsome because they detract from the fundamental principles
that allow a criminal justice system to inflict punishment in the name of

The 2011 regulation has been promulgated to enable the armed forces
requisitioned to carry out actions in aid of civil power in Fata to
effectively curb the threat posed by ³miscreants and foreign funded
elements.² While the 2011 regulation has been explicitly made applicable to
Fata alone, let that not create a false sense of comfort that this law is
meant only for the ³crazies² in our wild west and not relevant for the
³full-citizens² residing in the rest of Pakistan. Regulation 9 states that,
³the interning authority shall intern any person who by an action or attempt
may cause a threat to the solidarity, integrity or security of Pakistan.²
And further, that ³the interning authority may intern any person who may not
be in the definite area, but is suspected of committing acts or has nexus
with actions² that may obstruct the work of khakis in aid of civil power.

These provisions, together with Article 15 of the Constitution (that
promises freedom of movement to all citizens), removes any territorial
restrictions on the scope of the 2011 regulation and brings all citizens of
Pakistan within its realm. The kind of use that the 2011 regulations might
be put to is already evident from reports that the agencies (euphemism for
the ISI and MI) holding the Adiala 11 plan to try them under these
regulations. One will recall that while the chief secretary of Punjab had
unambiguously stated that the released individuals were picked up by the ISI
from Adiala Jail, the ISI had come up with some cock-and-bull story about
them being found around militant sanctuaries in Fata. So from here on anyone
who attracts the wrath of the ISI could either be transported to Fata or
arrested from his home anywhere in Pakistan on grounds that he has ³nexus²
with bad things happening in Fata or causes a threat to the ³solidarity,
integrity or security of Pakistan.²

Laws are ordinarily designed in a manner to ensure that they are not open to
abuse. It almost seems that the 2011 regulation has been conceived with the
opposite intent: to punish anyone anywhere in Pakistan that the khakis deem
a miscreant. Let us start with the procedural problems with the 2011
regulation. Regulation 11 confers on the governor or any officer authorised
by him the power to detain for such indefinite period when the armed forces
are acting in aid of civil power. The internment provisions clearly breach
Article 10 of the Constitution that requires that anyone who is arrested or
detained must be produced before a judge within 24 hours. And that no one
can be held in preventive detention for a period exceeding three months,
unless a judicial review board provides the detainee a hearing and finds
that there is sufficient cause to continue to hold him.

Under the 2011 regulation, the detainee has no right to a counsel. There is
no requirement to let the family know that the person is being detained.
Consequently, all detainees will be ³missing persons² till a high court or
the Supreme Court is persuaded to force khaki agencies or the governor of
Khyber-Pakhtunkhwa to confirm whether or not such person is being held under
the 2011 regulation. The only remedy available to the detainee is to request
the same internment authority that ordered his detention to reconsider and
withdraw the detention order. And the only human rights protection is that
an oversight board-comprising two civilians and two khakis-will review the
conditions of detention every 120 days and take cognidance of complaints of
torture. If the Adiala 11 (or shall we say Adiala 7, four of the 11 having
died in detention) is an example to go by, we now have a fair measure of the
human rights standards that will be observed.

The 2011 regulation has robbed the citizens of Pakistan of the minimum due
process protections guaranteed by Articles 4, 8, 10 and 10A of the
Constitution. How it mutilates the substantive rights promised by the
Constitution is even more horrifying.

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Criminalising justice - II

Legal eye

Babar Sattar
Saturday, March 07, 2012

The first thing taught in law school is the old maxim: an act is not guilty
unless the mind is guilty. With few narrow exceptions, every crime is a
combination of two necessary components: actus reus (or guilty act) and mens
rea (guilty mind). The Action (in Aid of Civil Power) Regulation, 2011, has
turned this conventional wisdom on its head by declaring that intent without
any act meant to carry it out is enough to constitute a crime, that an act
without being backed by guilty intent can also be deemed an offence, and,
further, that suspicion alone, without any corresponding act or intent,
might be enough to complete a crime.

If we are to continue using our armed forces as the lead internal security
agency, we need such extraordinary policing role to be backed by law. But
rather than bringing the armed forces within the fold of law when acting ³in
aid of civil power,² the state has opted to lift the applicable legal checks
in instances where khakis undertake military operations within Pakistan. The
2011 regulation defines a ³miscreant² as a person ³who is intending to
commit or has committed any offence under this regulation.² Further, any
person (not only a miscreant), who ³may obstruct actions in aid of civil
power in any manner whatsoever,² can be detained indefinitely. Consequently,
under these regulations, suspect intentions are sufficient to invite not
only detention but also constitute an offence.

Regulation 16 defines offences and states that anyone who ³challenges or is
suspected of an act of challenging the authority and writ of the federal or
provincial government...shall be deemed to have committed an offence under
this regulation.² The distinction between a suspect and a criminal thus
stands abolished. Anyone who grants refuge to a miscreant is also a criminal
even if he has no knowledge of the suspected miscreant¹s questionable acts
or intentions. So if someone stays a night at your place and is ³suspected²
of harbouring evil thoughts against the government, you might also become an
offender. And what is the punishment if you are deemed an offender: death,
or imprisonment either for life or up to ten years. This penalty provision
doesn¹t apply the principle of proportionality to distinguish a vile
terrorist from a lesser offender.

Article 9 of the Constitution guarantees life and liberty of citizens and
Article 15 their freedom of movement, subject to reasonable restrictions
imposed by law in public interest. If the 2011 regulation is found to be
valid law, anyone might be locked up in detention camp indefinitely on the
suspicion of a khaki or civilian officer on whom internment authority has
been conferred under the regulation, reducing to naught the protection
afforded by Articles 9 and 15 of the Constitution. Article 12 of our
Constitution prohibits retrospective punishment by requiring that, ³no law
shall authorise the punishment of a person for an act or omission that was
not punishable by law at the time of the act or omission.²

Regulation 26 contravenes Article 12 by giving retrospective effect to the
2011 regulation starting Feb 1, 2008. Criminalising something that has
already transpired shatters the core of rule of law as such system is meant
to declare in advance what is right and what is wrong to enable people to
order their lives accordingly. Can a citizen be punished for doing something
that wasn¹t illegal at the time he did it? We are in a quandary and don¹t
know what to do with militants and their sympathisers detained during the
operations in Swat and Fata because our khaki and civilian leaders never
thought about the law while executing the operations. Should we now compound
the blunder by mocking fundamental principles underlying rule of law?

Regulation 12 attempts to weave into law the fiction that locking someone up
will neither be a punishment nor will it have any other legal implication.
It states that ³the internment shall not affect the criminal liability of
the person interned for the acts that may constitute offences under this
regulation or under any other law.² This breaches Article 13(a) of the
Constitution, which holds that ³no person shall be prosecuted for the same
offence more than once.²

The scheme of the 2011 regulation is that suspects can be detained in
internment camps indefinitely. And it will either be at the end of the
period of armed forces acting ³in aid of civil power² in Fata and the tribal
areas or at any other time of their choosing during such operations that the
detainees would be prosecuted. It is in the context of prosecution that
Regulation 19 not just renders irrelevant Article 13(b) of the Constitution
(that protects against self-incrimination) but truly takes the cake for

Sub-regulation (1) states that, ³all evidence, information, material
collected, received and prepared by the interning authority, or its
officials in accordance with the provision of this regulation shall be
admissible in evidence and shall be deemed sufficient to prove the facts in
issue.² Sub-regulation (2) further states that, ³any member of the armed
forces, or any authorised official deposing on his behalf...before the court
to prove any event, offence or happening, shall be deemed to have proved the
event, offence or happening by his statement or deposition, and no other
statements, deposition or evidence shall be required. Such statement or
deposition shall be sufficient for convicting the accused as well.²

In a nutshell, you can be detained indefinitely if an officer with authority
under the 2011 regulations suspects you of harbouring evil thoughts against
the security or solidarity of Pakistan. The mere suspicion that you might
have challenged the authority of the federal or provincial government
through your acts is an offence punishable with death. Any evidence
collected and produced by the interning authority will constitute sufficient
proof. And any statement made by a member of the armed forces will be deemed
the gospel, requiring no other corroborative evidence to prove the offence.
Is this what rule of law is going to come to in Pakistan? Why not just line
up all those deemed miscreants by khakis and shoot them dead, instead of
going through this charade and adulterating the very concepts of rule of law
and justice in the process?

There is urgent need to fight criminals and terrorists and their dastardly
deeds. But the state cannot renege on its allegiance to the law and get down
to the level of the delinquents it is fighting. Our failure to come up with
sustainable solutions to our security imbroglio is being sustained by (i) an
omnipotent khaki mindset contemptuous of critique, blinded by
self-righteousness and its own rhetoric about patriotism, and oblivious to
principles underlying rule of law, and (ii) cowardly political elites that
have surrendered policy planning to the khakis and justify their abdication
of responsibility for the security and fundamental rights of the citizens
who vote for them either in the name of reconciliation or the historical
weakness of democratic institutions in Pakistan.

In formulating an effective national security and anti-terror policy we must
abandon our proclivity for quick fixes and parallel justice systems. Relying
on the army for fire brigade operations instead of building the
institutional capacity of the police will not work. Is it not amazing that
despite being in a security quagmire, we have done absolutely nothing to
strengthen our civilian law-enforcement institutions over the last decade?
Relaxing due process requirements, standards of evidence and reversing the
onus of proof to hasten terror suspects to the gallows after sham trials,
instead of fixing the training, technology and capacity gaps marring crime
prevention, investigations and prosecution, will neither produce justice nor
enhance citizen security. Compromising safety of the justice system to
create the illusion of efficiency is a dangerous temptation that must be

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Nadeem Malik Live is a flagship current affairs programme of Samaa.TV. The programme gives independent news analysis of the key events shaping future of Pakistan. A fast paced, well rounded programme covers almost every aspect, which should be a core element of a current affairs programme. Discussion with the most influential personalities in the federal capital and other leading lights of the country provides something to audience to help them come out with their own hard hitting opinions.

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