Criminalising justice Part - II Legal eye

The first thing taught in law school is the old maxim: an act is not guilty unless the mind is guilty. With few narrow exceptions, every crime is a combination of two necessary components: actus reus (or guilty act) and mens rea (guilty mind). The Action (in Aid of Civil Power) Regulation, 2011, has turned this conventional wisdom on its head by declaring that intent without any act meant to carry it out is enough to constitute a crime, that an act without being backed by guilty intent can also be deemed an offence, and, further, that suspicion alone, without any corresponding act or intent, might be enough to complete a crime.
If we are to continue using our armed forces as the lead internal security agency, we need such extraordinary policing role to be backed by law. But rather than bringing the armed forces within the fold of law when acting “in aid of civil power,” the state has opted to lift the applicable legal checks in instances where khakis undertake military operations within Pakistan. The 2011 regulation defines a “miscreant” as a person “who is intending to commit or has committed any offence under this regulation.” Further, any person (not only a miscreant), who “may obstruct actions in aid of civil power in any manner whatsoever,” can be detained indefinitely. Consequently, under these regulations, suspect intentions are sufficient to invite not only detention but also constitute an offence.
Regulation 16 defines offences and states that anyone who “challenges or is suspected of an act of challenging the authority and writ of the federal or provincial government...shall be deemed to have committed an offence under this regulation.” The distinction between a suspect and a criminal thus stands abolished. Anyone who grants refuge to a miscreant is also a criminal even if he has no knowledge of the suspected miscreant’s questionable acts or intentions. So if someone stays a night at your place and is “suspected” of harbouring evil thoughts against the government, you might also become an offender. And what is the punishment if you are deemed an offender: death, or imprisonment either for life or up to ten years. This penalty provision doesn’t apply the principle of proportionality to distinguish a vile terrorist from a lesser offender.
Article 9 of the Constitution guarantees life and liberty of citizens and Article 15 their freedom of movement, subject to reasonable restrictions imposed by law in public interest. If the 2011 regulation is found to be valid law, anyone might be locked up in detention camp indefinitely on the suspicion of a khaki or civilian officer on whom internment authority has been conferred under the regulation, reducing to naught the protection afforded by Articles 9 and 15 of the Constitution. Article 12 of our Constitution prohibits retrospective punishment by requiring that, “no law shall authorise the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission.”
Regulation 26 contravenes Article 12 by giving retrospective effect to the 2011 regulation starting Feb 1, 2008. Criminalising something that has already transpired shatters the core of rule of law as such system is meant to declare in advance what is right and what is wrong to enable people to order their lives accordingly. Can a citizen be punished for doing something that wasn’t illegal at the time he did it? We are in a quandary and don’t know what to do with militants and their sympathisers detained during the operations in Swat and Fata because our khaki and civilian leaders never thought about the law while executing the operations. Should we now compound the blunder by mocking fundamental principles underlying rule of law?
Regulation 12 attempts to weave into law the fiction that locking someone up will neither be a punishment nor will it have any other legal implication. It states that “the internment shall not affect the criminal liability of the person interned for the acts that may constitute offences under this regulation or under any other law.” This breaches Article 13(a) of the Constitution, which holds that “no person shall be prosecuted for the same offence more than once.”
The scheme of the 2011 regulation is that suspects can be detained in internment camps indefinitely. And it will either be at the end of the period of armed forces acting “in aid of civil power” in Fata and the tribal areas or at any other time of their choosing during such operations that the detainees would be prosecuted. It is in the context of prosecution that Regulation 19 not just renders irrelevant Article 13(b) of the Constitution (that protects against self-incrimination) but truly takes the cake for ingenuity.
Sub-regulation (1) states that, “all evidence, information, material collected, received and prepared by the interning authority, or its officials in accordance with the provision of this regulation shall be admissible in evidence and shall be deemed sufficient to prove the facts in issue.” Sub-regulation (2) further states that, “any member of the armed forces, or any authorised official deposing on his behalf...before the court to prove any event, offence or happening, shall be deemed to have proved the event, offence or happening by his statement or deposition, and no other statements, deposition or evidence shall be required. Such statement or deposition shall be sufficient for convicting the accused as well.”
In a nutshell, you can be detained indefinitely if an officer with authority under the 2011 regulations suspects you of harbouring evil thoughts against the security or solidarity of Pakistan. The mere suspicion that you might have challenged the authority of the federal or provincial government through your acts is an offence punishable with death. Any evidence collected and produced by the interning authority will constitute sufficient proof. And any statement made by a member of the armed forces will be deemed the gospel, requiring no other corroborative evidence to prove the offence. Is this what rule of law is going to come to in Pakistan? Why not just line up all those deemed miscreants by khakis and shoot them dead, instead of going through this charade and adulterating the very concepts of rule of law and justice in the process?
There is urgent need to fight criminals and terrorists and their dastardly deeds. But the state cannot renege on its allegiance to the law and get down to the level of the delinquents it is fighting. Our failure to come up with sustainable solutions to our security imbroglio is being sustained by (i) an omnipotent khaki mindset contemptuous of critique, blinded by self-righteousness and its own rhetoric about patriotism, and oblivious to principles underlying rule of law, and (ii) cowardly political elites that have surrendered policy planning to the khakis and justify their abdication of responsibility for the security and fundamental rights of the citizens who vote for them either in the name of reconciliation or the historical weakness of democratic institutions in Pakistan.
In formulating an effective national security and anti-terror policy we must abandon our proclivity for quick fixes and parallel justice systems. Relying on the army for fire brigade operations instead of building the institutional capacity of the police will not work. Is it not amazing that despite being in a security quagmire, we have done absolutely nothing to strengthen our civilian law-enforcement institutions over the last decade? Relaxing due process requirements, standards of evidence and reversing the onus of proof to hasten terror suspects to the gallows after sham trials, instead of fixing the training, technology and capacity gaps marring crime prevention, investigations and prosecution, will neither produce justice nor enhance citizen security. Compromising safety of the justice system to create the illusion of efficiency is a dangerous temptation that must be resisted.

(Concluded)

Part one of this article appeared on March 3.
Email: sattar@post.harvard.edu