WHEN President Asif Ali Zardari signed into law the Actions (in Aid of Civil Power) Regulation, 2011, almost nobody noticed.

Then, as now, Pakistan was in the midst of its existential war against armed militants and their heartless scattering of bombs over the country. If caught in raids, the details of their capture or detention seemed an indulgence not available to a terror-weary country.

With the passage of the law which was retrospectively applicable to both Fata and Pata, a number of legal safeguards were revoked. Among these was the provision that required that all those detained must be produced before a judge within 24 hours.

A second provision of the law deemed that the testimony of a single officer would be considered sufficient for the conviction of an accused, in contravention of the Qanun-i-Shahadat Ordinance of 1984.

Other parts of the new law eroded the requirements of the rules of evidence, suspending them such that “all evidences, information, material collected, received and prepared by the interning authority, or its officials, shall be admissible in evidence and shall be deemed sufficient to prove the facts in issue”.

The cumulative effect of the Actions (in Aid of Civil Power) Regulation was that if anyone was taken into custody by the security forces, he would not have to be produced before a judge, not be allowed to review the evidence against him or question it (since it was all prima facie admissible and sufficient) and only the testimony of the security officials (or even their deputies) who arrested him would be required to convict him.

The detention of a person in the area where the law is applicable means, therefore, near automatic condemnation; one that allows for no process or procedure and indicts instantly by the very act of accusation.

In a report entitled Hands of Cruelty issued by Amnesty International in December, the law was said to be wreaking human rights havoc in the tribal areas, with innocent civilians, poor farmers and others picked up, accused and detained without any recourse against the security forces carrying out operations in the region.

Last week, the issue emerged again when during a Supreme Court hearing, Attorney General Irfan Qadir acknowledged that over 700 alleged militants were being held by security forces without charge (as permitted by the Actions [In Aid of Civil Power] Regulation, 2011) and would likely continue to be held until hostilities had ceased in the area.

The ongoing security operations make any imminent cessation of hostilities an impossibility, meaning simply that increasing numbers of alleged militants are likely to continue to be held by security forces in the coming months.

The apparent intent of the Actions (in Aid of Civil Power) Regulation was to bring the detentions by security forces under the imprimatur of law. However, as the nature of the law, its provisions and the number of people already detained under the regulation reveal, the result has been the opposite.

Legal limits and procedures, such as the basis for questioning evidence, the number and type of witnesses, and the requirement to produce accused persons before impartial judges all exist so that in following them, the result is considered legitimate and reached justly rather than unfairly and forcefully imposed.

If the limits imposed by law are amended such that they fail to be limits at all, the consequence is to reduce the law to a mere gloss on brute force and hence shorn of any legitimacy.

The arguments in favour of the regulation are familiar ones: terrorism is a noxious threat, militant groups are themselves unconcerned by the law and hence the necessity of such measures and a disdain for laws that hold back the good security forces from really routing the bad terrorists.

The arguments are the same everywhere, proffered by the United States justifying drone attacks, the United Kingdom justifying the profiling of Muslim minorities and Pakistan taking apart an already tattered legal system to make it even more pliable against procedural safeguards.

Absent in all of these perspectives is the idea of the law, especially the law of wartime, as a lesson to be learned from past generations and wars where the respect for rules was remembered too late — after genocides and war crimes and hundreds of thousands dead.

Even less attention is given to the fact that if it is civilian populations whose loyalty and fealty is at issue, the evisceration of the law via such measures serves primarily to alienate, subjugate and terrify precisely those whose belief in the state is crucial to ultimately winning the fight against terrorism.

It could plausibly be the case that some of the 700 men (and probably more) believed to be held by security forces as a result of operations in North and South Waziristan and other parts of Khyber Pakhtunkhwa have ties to militant groups or are even involved in subversive non-state activities.

However, holding them without charge and failing to provide them with due process paints the state and security forces, by their use of obfuscations and amendments, as the villain of the piece. The absence of a fair trial, or any trial at all, encourages then a valourisation of all those detained persons, producing precisely the opposite of the intended effect.

With amended laws that make legality a farce and legitimacy a joke, the soldier — however self-sacrificing, patriotic and committed to the cause of protecting the innocent — is rendered a subjugating brute.

For everyone else, it increases the cost of war and the count of casualties from merely the dead whose bodies can be found and buried to the disappeared who remain unaccounted for, unconvicted and unburied but nevertheless gone.

The writer is an attorneyteaching constitutional law and political philosophy. rafia.zakaria@gmail.com

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Comments (6)

Dr Khan
January 30, 2013 2:54 pm
100% agree with you.
January 30, 2013 4:42 pm
yes mr. saeed you are right...its the problem with our legal system.if people are not getting speedy justice and should i say 'justice' then all these acts from the govt. seem's to be right..
January 30, 2013 7:02 pm
An intellectually stimulating write up. From the history of this region with the law and order management in view, one learns that it is easy to spoil something and very difficult to restore it. This region managed its affairs very well until the state intervened to assert its dominance. The state failed to provide law and order and now it is resorting to desperate measures in order to counter a desperate situation, caused by itself in the first place. No way out it, a Catch -22.
Aslam Khan
January 30, 2013 8:45 pm
The National Assembly had so far not passed the Anti Terrorism Law. Mind you, it was tabled in 2008. It is the case of fear and nothing else. These so called religious fighters kill the innocent people indiscriminately all over the country. There is no system of witness protection either. Now they are even said to be in the forefront of money extortion in places like Karachi. How should we deal with them, is a million dollar question.
January 30, 2013 5:38 am
With due respect, it sounds attractive to talk about human rights and other related biz words. I would only urge the respected writer to carry out a survey for any one district in KP province of the cases in anti terrorist courts. I am afraid you will be horrified to know that not even a single accused has been punished. The reason is coercion and corruption at lower level judiciary. The things had been so worse that people had started bribing the concerned police authorities to file cases under anti terrorism law instead of routine criminal act. The reason was that anti terrorist courts would expel the case within weeks. I would further urge the worthy writer to examine the anti terrorist laws enforced by Indians in Kashmir. Extra ordinary circumstances warrant extra ordinary measures.
January 30, 2013 5:05 am
Very well told. Thumbs-up!
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