Regrettable ordinance

September 22, 2019

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WHEN a law is passed surreptitiously, even if it is through a provincial ordinance that can only be in force for a maximum of two 90-day periods, there is good reason to be sceptical. It recently emerged during the hearing of a petition in the Peshawar High Court that the KP government had on Aug 5 issued the KP Actions (in Aid of Civil Power) Ordinance, 2019. In other words, certain powers given to the armed forces to tackle militancy in former Fata and Pata back in 2011 (retrospectively applied to take effect in 2008 and legalise detention centres) have now been extended to the rest of KP. The legislation, presented as a fait accompli, brings millions more people under the ambit of a special law which compromises their constitutional rights. The HRCP has roundly condemned the promulgation of the ordinance, citing the findings from its recent report that reveal “a strong trust deficit between the state and citizens of KP, the local communities that HRCP consulted are already wary of what shape law enforcement and access to justice will take…”.

Rather than expand its writ over the newly merged tribal districts, bring them into the Constitutional fold and strengthen civilian authority, the KP government has abdicated its duty to maintain law and order to the armed forces. It is a regrettable and retrogressive move. After all, we have long been told that militancy is under control; why is there now a need to tighten the state’s grip over an even larger section of the population? When the ordinance was first promulgated, it could be argued that Pakistan was in an existential battle against militancy in an area where civilian authorities were ill-equipped to fight back. In fact, the main purpose behind the original legislation was to give legal cover to the internment centres in erstwhile Fata and Pata where hundreds of forcibly disappeared people were indefinitely detained. In many cases, it was only when the military courts were set up in late 2014 and began to convict detainees that their families learned of their whereabouts — often simultaneously finding out that their loved one had been sentenced to death.

Special laws are never the solution. Military courts, mercifully not revived, were said to have been ‘necessitated’ by the country’s dysfunctional criminal justice system. But setting them up merely allowed the government to kick the can down the road rather than undertake meaningful legal reforms. Another example is that of the Sindh Rangers, the renewal of whose special powers of arrest and detention every three months has become so normalised that it is hardly worth a mention. Instead, it should be the provincial police taking sole responsibility for fighting crime. The KP government must repeal both the ordinance and the Action (in Aid of Civil Power) Regulation, 2011.

Published in Dawn, September 22nd, 2019