Legal face of the enemy
THE chief justice of Pakistan, during the hearing of several cases and on numerous other occasions, has referenced Article 5 of the constitution, which unequivocally demands loyalty and obedience to Pakistan’s state and constitution.
And rightly so. Any citizen of Pakistan who demands his rights under the constitution must first affirm his loyalty to it.
With each IED and suicide attack, or attempt thereof, terrorists make a clear statement: they have withdrawn their loyalty from the state and constitution under Article 5 and are waging war on the state of Pakistan, its people and its state symbols. These terrorists have publicly declared their intent to exercise unlawful control over Pakistan’s sovereign territory and have raised private armies that are barred under Article 256 of the constitution.
Thus the calling of armed forces in Khyber Pakhtunkhwa in aid of civil power ought to be viewed as a measure essential to uphold the constitution and enforce its provisions particularly Article 5 and Article 256.
Given this legal context, what then should be the appropriate legal status of such terrorists some of who also happen to be citizens of Pakistan? Will they fall in the category of an “enemy” of state? The constitution even permits state authorities to indefinitely detain an “enemy alien” who is also consciously exempted from Article 10’s safeguards regarding arrest and detention.
In times of war, it is a practice that states decline to render any assistance to the enemy including even in a commercial context. Hence, as per Section 83 of the Code of Civil Procedure, 1908, without the express permission of the government, an “enemy alien” has no standing to sue or proceed, either by himself or through any person on his behalf, in courts in Pakistan during conflict.
In a slew of cases (151 PLD 1978; 84 PLD 1983; 160 PLD 1966), Pakistan’s superior courts have broadly construed the term “enemy alien” and gone as far as maintaining that even a Pakistani passport holder temporarily residing in India is not entitled to sue for his properties in Pakistan as he would be classified as an “enemy alien”.
An enemy of the state of Pakistan is further defined by Rule 2 (2) of the Defence of Pakistan Rules as any person including Pakistan’s citizen or state “at war with or engaged in military operations against Pakistan”. Such an enemy of the state is not entitled to maintain any petition in Pakistan’s courts according to the rationale and spirit of the Code of Civil Procedure’s Section 83.
Further, Section 16 of the Pakistan Citizenship Act, 1951, grants extraordinary administrative power to the federal government to deprive a naturalised citizen of his citizenship if he shows himself by any act or speech to be disloyal to or “disaffected towards” the Pakistan constitution.
The idea is very simple. If you are loyal to the state and obedient to the constitution, the state is there to guarantee your fundamental rights.
But if you are waging war on the state and attacking it ruthlessly, and when apprehended you come running to the institutions of the very state that you are attacking, then the state will not facilitate you in filing any proceedings and walking free to wreak havoc again.
Although under the existing law, treating someone as an enemy remains a function of the executive, nothing prevents the judiciary from interpreting the facts and judging that someone falls in the category of enemy of the state.
Once a terrorist is found to be linked to a blast, to an IED explosion or to a private army, the court can draw the inference that the terrorist falls in the category of enemy of the state and his withdrawal of loyalty under Article 5 ought to be presumed.
Traditionally, jurisprudence discourages the courts intervening in war-related decisions taken by the executive arm of government. Courts look at “evidence”, the federal government looks at “possibilities” and “threats” and cannot afford to wait for the threat to cross the threshold of admissibility.
Accountability of the armed forces for excesses committed in internal or external conflict is done primarily under the framework of international law. Domestic law mostly protects the actions of its armed forces through constitutional indemnities.
Our own constitution refrains from enforcing fundamental rights whenever the army is deployed in internal or external conflict under Article 245 while providing indemnity. This constitutional pause is deliberate and exists to allow the federal government the flexibility to enforce military strategy to secure the territories of the state.
Of course such indemnity is never meant to be a licence for abusing human rights, and strong safeguards must be in place to prevent them.
Whether we like it or not, Pakistan is in a state of internal conflict or war with enemies of the state in certain parts of the country.
In the absence of national legislation regarding the regulating conduct of actions in aid of civil power (balancing human rights concerns with military necessity), existing laws including Sections 121 of the Pakistan Penal Code, 83 of the Code of Civil Procedure, 16 of the Pakistan Citizenship Act and above all Articles 5 and 256 of the constitution, must be looked into.
They must be creatively utilised by all stakeholders to handle the threat within the framework of the constitution.
The writer is advocate, Supreme Court of Pakistan, and president, the Research Society of International Law Pakistan.