THE struggle for the rule of law, respect for civil rights and democracy in Pakistan reached a landmark moment in 1973, when a constituent assembly of politicians from diverse political backgrounds framed a new Constitution. It was not a perfect document, but being drafted for the third time roughly 25 years after independence, and after losing half the country in a civil war, it was one which was a product of experience.
The lessons learned from history were reflected in Part II of Chapter 1 which enshrined the fundamental rights of the citizens of Pakistan. These rights, guaranteed to all Pakistanis, to be respected by all public functionaries and enforceable through the courts of law, were not an innovation — most have been borrowed from prior constitutions — but this time they were, as some would say, the heart and soul of the Constitution. Thus this Constitution has stood the test of time and triumphed, regardless of its limitations, because its heart was composed of the citizen’s rights and freedoms.
However, a folly of the original framers was Article 247, which excluded the Federally Administered Tribal Areas (Fata) and Provincially Administered Tribal Areas (Pata) from the constitutional governance afforded to the rest of Pakistan. Through this regressive clause, the executive could selectively apply the constitutional and statutory laws of the country in these tribal areas and the jurisdiction of the courts was also limited.
From the colonial-era Frontier Crimes Regulation (FCR), 1901, which legalised regressive measures such as collective punishments, to the more recent Action (in Aid of Civil Power) Regulations (AACPR), 2011, which effectively applied martial law to Fata citizens, barbaric special laws were applied to Pakistan’s citizens living in the tribal areas through Article 247.
Constitutional guarantees have been done away with by the AACPO.
It is therefore to the credit of Pakistan’s entire political spectrum for passing the 25th Amendment Act in May 2018 to do away with Article 247 and integrate these parts of Pakistan into the mainstream. Subsequently, the 26th Amendment Act was passed this year to increase the membership of representatives from former Fata areas in parliament. Pakistan’s political and military leadership thus, in a rare moment, showed true commitment to the spirit of our Constitution and provided our most disenfranchised citizens with the constitutional and civil rights guaranteed by the Constitution.
However, in September 2018, the KP Assembly, rather than continuing on the path to constitutional rule, passed laws allowing the continuation of the discriminatory, authoritarian and draconian AACPR for citizens of the former areas of Fata and Pata. These laws were challenged by KP citizens in the constitutional courts immediately as the regulations had no legal standing after the 25th Amendment. During the pendency of these petitions, last month, the KP governor, in an attempt to fill that legal lacuna, signed into law the Action (in Aid of Civil Power) Ordinance (AACPO), which applied these draconian regulations to the entirety of the province.
The AACPO allows the armed forces in KP to detain and place in internment citizens of Pakistan for an indefinite period of time without providing any reasoned orders and to search the citizens’ homes on the basis of mere suspicion. They can further refuse the accused’s right to confer with legal counsel and do not have to produce the accused before a magistrate to detain him. They can also convict citizens on the basis of unsubstantiated statements of their personnel.
As per Article 4 and Article 9 of the Constitution, all citizens have a right to liberty which can only be curtailed by the state after providing due process under the law. Under Article 10 and Article 10A, all arrested citizens must be produced before a magistrate within 24 hours of their arrest and be given a fair trial to be convicted on the basis of legally admissible evidence. Finally, under Article 14 and Article 25, citizens of Pakistan in KP have a right to privacy and to be treated equally under the law. Therefore, it is clear that all fundamental rights of due procedure and fair trial guaranteed by the Constitution have been done away with by the AACPO.
As per the Constitution, no law, executive order or action which violates the fundamental rights of the citizens of Pakistan is valid. Therefore this regressive, discriminatory and constitutionally invalid piece of executive overreach called the AACPO should immediately be struck down by our constitutional courts, rescinded by the governor of the KP, or repealed by the KP Assembly. If not, we would have taken a stab at the very heart of our Constitution and would be doomed to repeat history.
The writer is a human rights lawyer working in Islamabad.
Published in Dawn, October 17th, 2019