SINDH continues to be an arena of a fight, with the provincial government confronting both the federal government and the paramilitary Rangers that the centre has posted in Karachi, apparently overriding the objections of the province. As a result, a politico-constitutional crisis is brewing that may imperil the democratic dispensation in Sindh and beyond. Interestingly, all three contenders are justifying their respective stance on legal and constitutional grounds.
Rangers: The paramilitary force claims ‘absolute powers’ under the Anti-Terrorist Act (ATA) to arrest ‘any person’, including a public servant, who is suspected of involvement in terrorism-related offences. However, the putative ‘absolute powers’ are subject to due process of the law under Article 10-A of the Constitution. Moreover, citizens’ life, liberty and dignity, protected under Articles 9 and 14 of the Constitution, cannot be abridged on mere ‘suspicion’.
Further, the Rangers’ quest as an anti-terrorism agency to go against those who are prima facie involved in terrorism-related ‘corrupt practices’ may lead to double jeopardy for a detainee as seen in the ongoing case of Dr Asim Hussain. He was grilled first by the Rangers under the ATA and now NAB authorities are investigating corruption charges against him. Double jeopardy is prohibited under Article 13 of the Constitution.
Sindh, the centre and Rangers are stretching their limits.
Sindh government: The provincial government claims that under Article 147 of the Constitution, it can subject the requisition of federal agencies’ services to certain conditions. The provincial government can put some conditions but only of an administrative nature. It cannot override a statutory provision for the Rangers to discharge a duty. For instance, the provincial government cannot ask a police officer (the Rangers have been given policing powers in Sindh) to seek permission before arresting a public servant if he has committed a ‘cognisable’ offence under the Code of Criminal Procedure.
Federal government: Under Article 148(3) of the Constitution, the centre claims it can directly appoint the Rangers in a province to exercise policing powers (the legal position is that the Rangers can otherwise act as an appendage to provincial police or administration). But a plain reading of Article 148 may not support this interpretation, as the article is rather declaratory in nature: Paraphrased, 148(1) says federal laws must be complied with by a provincial government in exercise of its executive powers; (2) the federal executive authority is to be exercised in a province in the interests of that province; (3) the federation is bound to protect the provinces from external aggression and internal disturbances and to ensure that provincial governments are run in accordance with the Constitution.
Thus, the said provision gives no explicit or implicit authority to the federal government under Article 148 to practically assume the policing power of a province through its forces (the Rangers). In fact, that would amount to circumventing the iron wall that keeps law and order within the provincial domain.
However, if conditions so arise, the centre may impose emergency or governor’s rule in a province under Article 232 and 234. But in this instance, the federal government’s deployment of the Rangers in Karachi allowing them to exercise powers under Section 4 of the ATA doesn’t quite sit well with the existing constitutional scheme of the federation.
Hence, all three contenders are stretching constitutional and legal provisions to the lengths of their respective political and institutional interests. What is needed are complementary and coordinated efforts to ensure peace and continuance of a constitutional order in the province. Instead of scoring points against each other, a dispassionate but deeper appreciation is required to understand the rationale behind the divergent views of the provincial government and the Rangers/federal government.
The Rangers’ demand for unrestricted powers seems justified on operational grounds. But, the provincial government may also be justified in demanding a minimum threshold (permission) for arresting its functionaries in order to protect their fundamental rights, given that many ‘suspects’ have been released by the Rangers for lack of evidence.
Hence, the issue is not strictly legal or constitutional; it is related to operational formulations. One formulation could be to let Rangers act freely against core terrorists, whether public servants or politicians, leaving the corruption- and terrorism-tainted public servants to be probed first by anti-corruption agencies, in coordination with the Rangers.
Thus, public servants may escape detention on ‘suspicion’, leading to multiple investigations, and double jeopardy. Only material evidence collected by anti-corruption agencies would provide the basis for further action.
It is, however, incumbent on the provincial government to revamp its anti-corruption agency, making it truly independent and effective to stamp out malpractices that feed into terrorism. Or else, the federal agencies will continue to intrude into its domain.
The writer is a lawyer and academic.
Published in Dawn, December 29th, 2015