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Laws cut out for abuse

February 19, 2015

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THE case against human rights activist Zia-ur-Rahman has exposed the threats to citizens’ rights from the wrong or unfair application of security laws.

Since the case has been taken up by the high court, it will not be proper to discuss its merits, and the present write-up only concentrates on the plight of citizens when their basic rights suffer degradation in an atmosphere of insecurity-driven tension.

Zia-ur-Rahman heads a Multan-based civil society organisation, registered under the 1860 Societies Registration Act, with a record of public service over two decades. He decided to train his rural community for their electoral responsibilities and the process of balloting was simulated. The district registrar under the 1860 act decided that Zia and his colleagues “have committed offence of anti-national activities as they prepared ballot paper and other election material and conducted election which is the task of election commission. It is the right [?] that legal action may be taken against the above-mentioned persons.”

The assistant sub-inspector/moharir at police station Makhdoom Rasheed, Multan district, registered a case against Zia-ur-Rahman and three others under Sections 420, (cheating), 468 (forgery), 471 (use of forged document) of the Penal Code, and Section 13 of the Prevention of Anti-National Activities Act, 1974.

The police arrested three associates of Zia-ur-Rahman and they were admitted to bail by a magistrate. The magistrate noted, in regard to the application of the Anti-National Activities Act, that “no prima facie documentary proof is available on file from the prosecution side that the concerned NGO, ie, Awaz CDS Foundation, has been declared as anti-national by the competent authority. Moreover, offences do not fall within the ambit of the prohibitory clause of Sec 497 of CrPC [ie, offences are bailable].” These three co-accused are still free on bail.

Zia-ur-Rahman approached the Lahore High Court, Multan bench, for pre-arrest bail. The court took note of the plea that the petitioner was “being denied access to the court of competent jurisdiction” and allowed protective bail for two days.

Meanwhile, Zia-ur-Rahman protested to the local authorities but they pleaded helplessness as the orders to proceed against him had allegedly come “from above”. He then approached a kind-hearted provincial minister only to be told that the matter was too sensitive to be touched by anyone.

However, the complainant’s conscience turned and he signed an affidavit that his complaint was based on a misunderstanding and that the accused had done no wrong. This retraction had no effect.

The accused appeared before an additional district and sessions judge (ADSJ) for pre-arrest bail. The court dismissed the plea for want of jurisdiction. Zia-ur-Rahman was arrested the same night.

The next day, the police sought judicial remand from a magistrate — the same one who had allowed bail to the three co-accused. The court noted that since the ADSJ did not have jurisdiction it could not have that authority either. The investigation officer was told to approach the court of competent jurisdiction.

The police then sought remand from the court of the special judge, because they thought that an offence under the Prevention of Anti-National Activities Act was triable by it. The judge did not agree. He said: “The above-mentioned offence is not (a) scheduled offence and as such does not fall within the jurisdiction of the court. The police is directed to produce the accused before the learned area magistrate.” The latter had already pleaded lack of jurisdiction.

The matter was then raised before the high court at Multan in a writ petition. No decision was announced till this (Thursday) morning. By now Zia-ur-Rahman has been in prison for 21 days.

This account shows Zia-ur-Rahman was deprived of liberty and the due protection of the law because neither the police nor the prosecution tried to read the laws mentioned in the FIR. An allegation of anti-national activity was enough to rob Zia-ur-Rahman of his fundamental rights to liberty and justice.

The dirty law under reference was devised in 1973-1974 to justify the dismissal of the Balochistan government and the banning of the National Awami Party. Under it, an association must be declared anti-national before any action against its members can be taken. Further, proceedings can be initiated only by the federal government or an agency authorised by it. While the magistrate did note at the outset absence of record to show that the accused’s NGO had been declared an anti-national outfit, nobody bothered to ascertain whether the complainant had been authorised to file a case under the law invoked by the ASI in his sweet discretion.

The case lays bare the frightening possibilities of abuse of security laws created by the hype over the Anti-Terrorism Act, Action in Aid of Civil Power Regulation, the Protection of Pakistan Act, and the amended Army Act. Once any of these laws is used by a state functionary, and he may be no higher in rank than an assistant sub-inspector, the accused loses all his rights to statutory relief. Nobody can even squeak in his favour.

It is precisely the apprehension for such abuse of legislation that the special security laws have consistently been opposed. The obvious lesson is that the lawmakers must not adopt laws that deny the citizens the right to due process. If a reappraisal of the recently beefed-up security laws will take time, the state must train the investigators, prosecutors and judicial officers in appropriate interpretation/application of these laws because they encroach on citizens’ rights to liberty, security and personal dignity.

The law might be an ass but must its enforcers take leave of their senses?

Published in Dawn February 19th , 2015

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