Surrendering arms: legal lacunas
TERRORISM is not a phenomenon that is now taking roots in our society. It has been nurtured under the insufficient and inadequate laws of Pakistan and is now at its peak. Illicit arms and ammunition as the main promoters of terrorism are spreading in Pakistan without impunity.
The core weakness lies in the Surrender of Illicit Arms Act’ (XXI of 1991), which is inadequate to control illicit arms traffic.
Clause 1 of section 1 of the said Act extends its operation to the whole of Pakistan.
However, clause 2 makes such operation contingent upon the ‘notification’ for application of the Act to ‘such areas’ and ‘such dates’ as declared by the federal government.
Till such time the federal government makes a notification, the provincial government cannot take any action under the Act.
Even if the federal government issues a notification, illicit arms can be controlled only in ‘such areas’ and only ‘on such dates’ as notified.
If there are illicit arms traffic other than the notified dates and notified areas, the law-enforcrs and the provincial government cannot register a case.
Section 1 note: (1) Clause (3) of the Act provides that the Act shall not extend to the Pata (now Khyber-Pakhtukhwa) and clause (4) exempts the Pata of Balochistan, the areas which are the main sources of illegal arms smuggling.
Promulgated in 1991, the Act was enforced in the four provinces after a decade on June 15, 2001. During these 10 years from the inception of the Act till 2001, illicit arms retention was legal as no action could be taken against the possessors.
The ‘notification’ under Section 1 (3) of the Act is also dependent on yet another ‘notification’ by the federal government under section 4 which will disclose the specific authority before whom the illicit arms will be surrendered. It can be assumed that in the absence of notification under section 4, the notification under section 1 (3) carries no weight and no case be registered.
The district coordination officer, deputy district officer (revenue) or officer-in-charge of a police station can be notified as competent authorities before whom illicit arms ‘shall be’ surrendered under section 4 clause (1). Instead of designating DCO (revenue), a sessions judge or a first class magistrate would be a better choice for the framers of the Act 1991.
Section 2 of the Act 1991 expressly excludes sub-machineguns, their silencers and revolvers or pistols from the definition of ‘illicit arms’.
Section 6 of the Act 1991 makes it mandatory for the federal government to give publicity to the provisions of the Act 1991 in the media.
On our TV channels and on social media we hardly see any such publicity.
Only the federal government is authorised under section 9 of the Act 1991 to launch a campaign for recovery of illicit arms, while the provincial government is not.
Another anomaly exists in clause (3) of section 11 that in case where a licence is cancelled by the federal government, such arms, explosives or ammunition can be deposited before such authorities ‘as specified’ by the federal government. The language of clause (3), section 11, gives the impression that the authorities designated under section 4 (1) through notification can only collect the surrendered illicit arms and not those arms whose licences have been cancelled unless specified to do so.
Section 15 of the Act 1991 is another tool in the hands of the federal government that authorises it to make ‘an order or direction not inconsistent with the ‘provisions’ of the Act for the purpose of removing any difficulty. By virtue of Article 247 of the Constitution, Fata itself is exempted from the operation of the Act 1991.
The provisions of the Act specifically exempt Pata from its operation and, therefore, the federal government can never extend it to those areas as that would be inconsistent with the provisions.
Similarly, the provincial government can never be given authority, and the area of illicit arms will ever remain under the domain of the federal government.
Moreover, a sessions judge, a magistrate or an SP cannot be notified as competent authority under section 4 (1) before whom illicit arms could be surrendered and only those expressly mentioned in the section shall ever remain authorised to take surrendered arms.
SYEDA SAIMA SHABBIR
Research and Reference Officer
Supreme Court of Pakistan