Ensuring Freedom?

Rabia Wali

Are we free or still entangled in some colonial myth of Law and order which helped to detain people for as long as one fell in the broad spectrum of preventive laws? No, we are not, which further gives birth to another question If we intended to keep these laws in future for security reasons and if we were convinced that both human rights and security aspects of state are antagonistic to one another then why we criticized them back then. Is it only because of general ruling perception of British injustices with absolute probability of abuse of law in their hands? Frankly speaking such abuse is highly possible in our own hands too, however, being newly independent states these laws were happily adopted by both India and Pakistan in their Constitutions and made active even for ordinary circumstances notwithstanding the fact that they have been highly discouraged internationally and world’s oldest democracies like USA and UK despite having occasional use of such laws never made them part of their Constitutions. Thus if we draw a comparative analysis of nature of these laws in both western and eastern constitutional perspectives, we can observe how by not giving such laws Constitutional validity, west has constrained its casual application and such laws will be invoked only in special circumstances or in case of emergency but we the eastern democracies by allowing preventive detentions in our Constitution have given free hand to our agencies and forces to detain anyone, anywhere even in ordinary circumstances and this is the major reason behind increasing number of missing persons in Pakistan.

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Now mere doubt on person’s activities or any relation to a terrorist can trigger such detention under Article 10 of our Constitution and in its Original text of 1973 Constitution only one-month detention was allowed which had been unluckily extended to three months by Zulifiqar Ali Bhutto through third Constitutional amendment. Who knew that even 3 months will fell short for the investigation and today these persons will be the one called missing persons in Pakistan and without the advisory board’s permission they will be detained in unknown Private prisons with no record for as long as the agencies pleased and when they will be released most of them will be already too afraid to brought a case before court of law against such authorities. This whole scene seems quite outrageous because where the international world is working on bringing down preventive detention provisions from the laws altogether, there we the people of Pakistan are witnessing a regressive approach by not even following the protocols of article 10 and currently six thousand plus cases of missing persons are recorded by Missing person Commission where majority of them are in Police or Military’s custody but their whereabouts are not shared with their families or not even with courts hearing their cases.

In a situation like these initially it might seems to you only a violation of a colonial based rule (Article 10) but in reality it’s a whole lot more than that by abducting someone like that you are violating his very basic fundamental rights that are secured in Article 9 (Right to life and liberty), Article 4 (To be dealt in accordance with law), Article 15 (Freedom of movement) Article 16 (Freedom of assembly) and Article 17 (freedom of association). Although nearly all the provinces facing this menace of enforced disappearances but according to international commission of Jurist report major chunk of these persons come from restive western province of Baluchistan. In most of the cases journalist, Students, human rights activists or politicians who are critical towards state practices are considered state’s threat and treated within the preview of terrorism and by illegally detaining them and threatening them they are forced to align with State’s policies.

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No doubt security also matters but securing it by sacrificing bunch of fundamental rights is not a risk worth taking. According to Raema Omer a legal advisor to international commission of jurist the policy of treating rights antagonistically to the security of a state is flawed within and rather a state can secure security without violating that person’s rights if the protocols given in laws are fully followed and narrow application of preventive detention laws is made possible. As suggested by many jurists first of all Constitutional validity of such laws should be shed down and that’s how we will be able to restrict their application only when the special circumstances arise. Through laws like Actions in aid of civil powers regulation (AACPR) 2011 which came in action especially for Sawat operations military gained upper hand over civilians of the region and expanded their operation of enforced disappearances to other areas of Pakistan like KPK, Baluchistan through this law. This law of AACPR 2011 has been highly criticised nationally and internationally and Peshawar High Court in October 17 2019 order struck down this law but unfortunately this ruling has been reversed within few days by Supreme Court of Pakistan, which led us to conclude that there is a dire need to criminalize enforced disappearance through legislation and that’s how the application of such laws can be restrained. In 2019 Prime Minister Imran khan allowed the drafting of Bill for Criminalization of Enforced disappearances, however nothing concrete proceeded further.

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Although Supreme Court since 2007 has taken up several cases related to missing persons but what use are these cases of if you can’t hold specific person or authority accountable for it and worst holding on Adiala 11 case is one of them. For as long as these agencies or the persons controlling them not held responsible for their actions through concrete legislation the realisation of Rule of Law in our country will remain a distant dream. Freedom and rule of law were the principle factors for which our forefathers fought and gained independence so let’s make sure without any biases that no one can shake the basis of it. In short, we are not only keeping the colonial oppressive laws but making them more oppressive by allowing such abuse of power, if you ask what is freedom to a missing person his answer will shock you because what he experienced in his own country is beyond shocks.

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