Dead or disappeared
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.