Legal Terror

With the imposition of the ‘emergency’ General Musharraf has not only suspended most of the fundamental rights clauses of the Constitution, he has suspended the Constitution itself as well. The Provisional Constitutional Order (a problematic term surely when a Constitution was in place when the PCO was imposed and when the Supreme Court of the country had announced that any PCO would be illegal) makes it very clear that General Musharraf would have the power to issue any ordinance, any order and amend the suspended Constitution in any which way he likes and this power cannot be questioned or challenged in any court of law.

But the story does not end here. Even after having all these sweeping powers his government has felt it necessary to bring about changes in the Pakistan Army Act (1952), the basic law governing interrogation/trial procedures pertaining to military personnel, to allow civilians to be arrested and interrogated by the military and to be tried through military courts as well.

The new Ordinance, termed Pakistan Army (Amendment) Ordinance 2007 increases the ambit of offences that can be tried under the military legal system. The new Ordinance adds the clauses “any offence, if committed in relation to defence or security of Pakistan or any part thereof or Armed Forces of Pakistan, punishable under the Explosive Substances Act, 1908 (VI of 1908), Prejudicial conduct under the Security of Pakistan Act, 1952 (XXXV of 1952), the Pakistan Arms Ordinance 1965 (W.P. Ord. X of 1965), the Prevention of Anti-national Activities Act, 1974 (VII of 1974) or Anti-terrorism act, 1997 (XVII of 1997), sections 109, 117, 120B, 121, 121A, 122, 123, 123A, 124, 124A, 148, 302, 353, and 505 of the Pakistan Penal Code, or attempt to commit any of the said offences.”

The amendment allows the government the power to arbitrarily choose which civilians, suspected of a crime under all of the Ordinances and Acts mentioned above, are to be detained, investigated and tried by the military and which will go to the civilian system. It allows the army the freedom to hold people under arrest for longer, and without ‘due process of law’ than is expected in cases of arrest, and it allows the army to try them through military courts as well. The ‘normal’ rights of being produced before a judge, being charged in a certain time period, having access to legal counsel and having access to family members would not be allowed to civilians charged under the new army act.

The government felt it had to do this for a number of reasons. There was a ‘missing persons’ case which the Supreme Court, that has been just purged, was hearing. At the last hearing of the case, the Chief Justice, who was presiding over the relevant bench, had remarked that it seemed clear that almost all of the people who were ‘missing’ were in the custody of military and intelligence agencies. Since they were being held in contravention of the due legal procedure, the Chief Justice had warned the agencies to free these civilians or he would be forced to take some ‘extreme action’. The law now takes care of these people and any such new cases. It was also felt, articulated as a charge by General Musharraf in the PCO and in his speeches, that the courts were letting terror suspects off the hook. But the court had countered by saying that if these people are indeed terrorists, and the government is convinced of it, why is it unable to furnish sufficient evidence against these people to the courts.

The new Act is clearly in contravention of accepted norms of legal process and basic human rights. And even if this law is for terror suspects, though the range of offenses to be covered under the amendment are much broader than that, is it necessary to subvert the normal cannons of justice and due process for them? Why are we making torture legal? If people can be kept away from courts, legal counsel and from family members, and if they can be kept under inhuman conditions for extended periods, will this not be the equivalent of legal torture?

Almost all of such laws that give extensive powers to the state, at least in Pakistan, have been abused by the state. It is very likely that this law too will be abused; the missing persons case was an abuse of the existing law. Since the law itself is draconian enough, the abuses of the new law are going to be simply horrendous. How can any civilized society allow such laws to exist and have such expansive and inclusive ambit?

The amendments to the Army Act of 1952 cannot be challenged in the Supreme Court under the PCO. If they could be challenged, it would not have been difficult to show that they are incompatible with the fundamental rights guaranteed in the Constitution. A lot of people have been agitating the fact that the emergency measures introduced by the General should be removed and the Constitution should be restored. We will also have to be aware of the fact that the General has, under the PCO, introduced a number of amendments to a number of important laws. We need to agitate that these amendments should also be removed when the emergency is lifted and any act of legalizing the current period of rule should not automatically give legal cover to these amendments. If the government wants to bring about these amendments, they should take the normal route of going through the legislature and it should be possible to challenge them through the court system under the 1973 Constitution. Otherwise some of these changes will just remain forms of ‘terrorizing’ the population using the coercive power of the state.