PREVENTIVE DETENTION

The need to pass specific laws mandating the practice of preventive detention by the colonial government occurred only after the writ of habeas corpus was made actionable for Indians in the subcontinent.

In a succession of cases that flowed from the exercise of such pow­ers, the Privy Council in the UK upheld that the powers of detention by the executive authority were neither to be made subject to a test of reasonableness, nor were courts to intervene to check the discretion­ary authority of the executive where it was ‘satisfied’ that the person detained was a threat to the purposes being protected under the article. In recounting this colonial history, Imtiaz Omar notes that ‘preventa­tive detention had been a potent and effective mechanism to contain political dissent in the colonial state’ and that, somewhat paradoxically, the ‘constitutional systems of the post-colonial states have expressly legitimatized’ and kept such powers.

The first law enacted to authorise preventive detention in indepen­dent Pakistan was the Public Safety Ordinance of 1949. The central government was authorised to act ‘if satisfied’ that the person detained was a threat in a manner prejudicial to public safety and public order.

Each of these statutes provided an administrative review board, but one comprised of executive actors. Altogether, there was a low thresh­old of protection for detainees, so that executive powers had been bolstered from what they were under colonial statutes.^[506]

The 1956 Constitution altered the landscape by offering the right to be detained but subject to certain constitutional safeguards and in con­formity with law. It introduced the right to be informed of the grounds of arrest, the right to counsel and to be produced ‘before a magistrate within a period of twenty-four hours’. There was also a rather capa­cious exception to the foregoing in cases of persons ‘arrested or detained under any law providing for preventive detention’. Simulta­neously, the avenue of filing a habeas corpus petition even where the detention had been made by way of a law, was allowed. For reasons of haste and even of impartiality, this was a much preferred route for detainees, although not always unproblematic.^[507] As noted earlier, the Dosso judgment rendered these avenues unavailable and review only picked up pace well after Ayub and the 1962 Constitution were in place.

In light of the Maudoodi case discussed earlier, the conditions of preventive detention were also subject to a more stringent review, one that did not concede the powers of decision-making altogether to detaining authorities. In the 1967 Ghulam Jilani^[508] case the Supreme Court utilised an objective test for the reasonableness of the grounds offered by the detaining authority to justify detention. In upholding the decision that forms of direct action initiated by opposition parties and politicians provided sufficient grounds for detention, the Court specified that the detaining authority was burdened with showing that there had been an ‘application of mind as to the necessity of such a person’s detention’ and that a similar conclusion would be drawn by a ‘reasonable person’.^[509]

The detention in Jilani, authorised by the Defence of Pakistan Ordinance 1965, was accepted as lawful. The court was unwilling to look at the indefinite nature of detention as in any way violative of broader liberty concerns. In regard to the contention that the actions that had attracted the detention orders were ‘within the legitimate political sphere’ in a context where assemblies were functioning and newspapers being published, the court suggested that taking out pro­cessions and fomenting discontent against the government immediately at the conclusion of a war was in fact to be ‘playing with fire’. Where the government makes allusion to concerns of heightened and national ‘importance’, there seems to be a meeting of minds between the judi­ciary and the executive in this period.

This period was one in which various sites of political action were being heavily policed. The nature of state action particularly reflected the concern to quell regional unrest. The courts were willing to accept that persons proclaiming that any part of the population had a nation­ality ‘besides that of Pakistan’ were to be thus detained. Through the early 1960s, Abdul Ghaffar Khan was repeatedly taken into custody and ‘every six months his detention was extended.

Prior to the passage of the 1973 Constitution the detention regime was mostly at the service of the central government’s ‘search for national unity’. Such integration prioritised controlling or repressing dissent both at the centre and within the provinces. These goals ‘were perceived primarily in bureaucratic rather than in political terms’.^[512] The detention of leaders was invariably accompanied by mass detentions of people who were their affiliates and supporters. Very little of that has made its way into the official or even judicial record although police and military brutality in the course of such detention is well documented.

A. Preventive Detention under the 1973 Constitution

During debates for the passage of the 1973 Constitution, the possibility of removing constitutional protection for preventative detention under any circumstances was tabled. Bhutto’s law minister and chief defender of the draft Constitution championed the clauses nonetheless. He offered the assurance that the review board, to be constituted now only of senior members of the judiciary, would act as adequate protection against arbitrariness.^[513] The conditions for detention were made more restrictive, insofar as the detaining authority was required to communi­cate grounds ‘as soon as possible and at the latest within one week’ and that the length of initial detention could be no more than one month before review board authorisation would be necessitated.

Hours after the passage of the 1973 Constitution, fundamental rights were suspended in the country. The popularly elected govern­ment of Bhutto availed itself of the opportunity to engage in levels of political victimisation and suppression of dissent, aided now by the heightened ideological search for unity that Bangladesh’s breakaway had enabled. However, citing that a democratic transition had already occurred, many judges held detaining authorities responsible for main­taining fidelity in their orders to the full panoply of safeguards that had been constitutionally mandated.^[514] In addition they cited the fact that Article 233 gave emergency authorisation for suspension of fundamen­tal rights but did not authorise derogation from Article 10 protections.

The governmental response was to engineer a set of constitutional amendments aimed at broadening the powers of detention and then immunising the same against judicial oversight: the Third, Fourth and Fifth Amendments were fashioned, at least in part, to accomplish this goal. The Third Amendment reinstituted the three-month period of limitation for initial detention and expanded the time duration for the giving of grounds from ‘as soon as may be or within one week’ from the original text to ‘within 15 days’. The upper limit of detention was also removed for additional classes of persons.^[515] The Fourth and Fifth Amendments, by circumscribing the powers of High Courts to provide relief through orders, bails, interim orders about preventive detention, solidified the apprehensions of political opponents and the public alike about the forms of impunity sought by the government.

Courts were not necessarily more deferential to executive action in the aftermath. High Courts in this period decreed that a writ of habeas corpus would not be barred simply because a reference to the review board had been filed or because the period of review had already exceeded one month or because it was sought to be extended.^[517] On the substantial issue of protecting political speech and expression, the Lahore High Court was the most adventurous. In a case heard in the Lahore High Court in 1976, the court quashed a detention order against a political opponent of the Bhutto regime by establishing that calling into question the fair name of the ruling party or the Prime Minister was not sufficient grounds to show that if not detained, the person delivering the speech was likely to ‘jeopardize public order’.^[518] ‘Mere criticism’, even if strongly worded, could not be held to be ‘prejudicial’ to the maintenance of such public order.^[519] Additionally, the Peshawar High Court in the Nek Amal judgment noted that what had been communicated to the detainee was that he had made a speech that was considered to be ‘inflammatory and tended to incite violence among the landlords-tenants of Malakand Agency’. Chief Justice Safdar Shah felt this to be a ‘conclusion’ based on no further contro­vertible evidence, such as the place where the speech was given or the language employed.^[520]

The conditioning of the courts to read constitutional protections more broadly than had been the case in the early years of transition and during the existence of martial law provided some limited room for manoeuvre vis-a-vis the functioning of courts during the long reign of Zia. While the Nusrat Bhutto case established the validity of martial rule on the basis of the doctrine of necessity and thereby also allowed for Zulfiqar Bhutto’s detention orders to be validated, a string of subsequent cases show a greater deference to balancing the rights of personal liberty that were at stake in revocation of the rights and procedures established by Article 10 of the 1973 Constitution.

In a case where the detention of two former ministers within the Bhutto regime had been engineered by Martial Law Order No 12, the operative mechanism by which Zia sought to vacate the field of Article 10, broad-ranging discussions about the enforcement of rights during martial law were brought onto the record.^[521] Nonetheless, against this, the courts had already indicated that they would retain powers to test martial law orders and regulations against the ‘conditions of neces­sity’ by which the larger scheme of martial rule had been validated. In that context then, the majority in this case upheld the primacy of ‘liberty’ even as they acknowledged that situations of emergency can strictly delimit individual liberty guarantees and that there will be per­missive and even indemnified violations by authorities responsible for restoring situations of normalcy.^[522]

While this case involved some notable personalities, the mainte­nance for the next seven years of a martial law under Zia entailed that the practice of detention was perhaps unchecked at the level of local martial law administrators. As was already apparent under this case and in others, the expansion of law to mean validly enacted Regula­tions and Orders under martial rule included punitive or preventive measures for those where they were found to be ‘acting in any manner prejudicial to the purposes for which Martial law has been enacted’. The courts remained in an eternal cycle of also bringing into the field those principles and judicial determinations which could afford prin­cipled resistance to the expansionary capacities of an executive that was increasingly ruling with an iron fist. The Eighth Amendment of the Constitution did away with many of the restrictions imposed upon Article 10 by the Zia regime.

B. Heightened Scrutiny—Restoration of Democracy and Preventative Detention

A quick run-through of the law of preventive detention as it currently stands should provide some hope about judicial reasoning in Pakistan and the ways in which it has progressively freed itself in many ways from the national security paradigm of earlier decades. Simultaneously, however, there is plenty of reason for scepticism about the place and efficacy of law in general within Pakistan. This is most apparent in the phenomenon of missing persons, those held in extra-legal custody by security agencies in post-2001 Pakistan and the reframing of positive law broadly to accord arrest and detention greater exceptional status within the constitutional framework.

The Anti-Terrorist Act, 1997 was passed with the explicit mandate of curtailing the activities of ‘sectarian’ organisations, those ‘pertaining to, devoted to, peculiar to, or one which promotes interest of a reli­gious sect or sects, in a bigoted or prejudicial manner’. Until recently, it was the major law in the field of detaining and prosecuting suspected terrorists. Whilst the statute conferred no additional capacities for authorising detention, the pace of such detentions for those deemed to be affiliated with sectarian organisations was speeded up by virtue of the names of proscribed organisations and individuals being appended to lists for whom additional policing was thus mandated. The individu­als whose names appear within Schedule III of the Anti-Terrorist Act are made then to furnish bonds and foreswear any ‘terrorist’ acts, the commission of which could land them in specially constituted anti­terror courts. The appearance of a person’s name on such a list has ensured, it seems, the greater likelihood of their being preventively detained under either the Maintenance of Public Order Ordinance or the Security of Pakistan Act, and thus an increasing number of cases have arisen pertaining to such persons over the last decade and a half. Where the writ of habeas corpus has been heard, the evidence of ‘mere membership’ in such organisations has been held to be insufficient as grounds for their detention.^[523]

Courts will almost always entertain a habeas writ in the case of preventive detention^[524] and have assumed absolute pre-eminence over ‘judicial, quasi-judicial and executive functionaries of the Provincial and Federal Governments under Article 199 of the Constitution’.^[525] The procedural preconditions for lawful detention include a disclosure of grounds to the detainee, which must occur within a reasonable period of time so as to comply with the constitutional condition under Article 10(4) that it should be ‘as soon as may be’.^[526] Although allowance is made to vary the length of time in consideration of the anticipated duration of detention, absolute non-communication is found to render both the remedy of representation between a review board nugatory as well as the order, upon a habeas petition, unlawful.^[527]

The clause by clause perusal of the original detention order has repeatedly established the principle that the detention will be held to be unlawful if even one ground is bad in law.^[528] Detentions based upon the past conduct or habitual criminality^[529] of a detainee have similarly been declared to lack reasonableness. In addition, the courts have demanded that grounds be neither vague nor indefinite and that the harm sought to be avoided must be shown to have an immediate likelihood of hap­pening if the person were not detained.

Furthermore, the courts have excavated the objects to which statutes such as the MPO and SPA are aimed by elaborating the conditions of what poses an actual threat to public order. It has been given that in order to find such a threat, ‘it must be shown that the act or activity is likely to effect the public-at-large.’^[530] The mere creation of a law and order problem does not in any way create a sufficient threshold condi­tion to enable preventative detention to take place.

By engaging in a balancing test between rights and collective, state- defined purposes, the courts have allowed the former to make inroads on what has traditionally within Pakistan remained the unassailed right of the executive to decide. Furthermore, by identifying other rights as somewhat impugned in the facts of certain cases, they have also expanded the protective ambit of these rights protections. For example, even in the case of militancy and those shown to be disseminating material under the auspices of a banned organisation, the right of free­dom of speech, as granted in Article 19, was felt to be broad enough to provide cover to this activity. In reference to material that was simply expressing disapprobation of governmental policy, Justice Muhammad Akhtar Shabbir of the Lahore High Court opined: ‘I am unable to understand as to how distribution of these pamphlets in the general public was termed as terrorism or sectarianism’.^[531]

In coming to an account of the missing persons phenomenon in Pakistan, it is important to note that judicial vigilance in seeking cred­ible grounds for the preventive detention of terror suspects cannot wholly explain the state’s recourse to such measures. The most notable person to be thus freed, at least thrice in the course of a few years, is Hafez Saeed. Saeed is one-time known leader of the Lashkar-I-Tayyaba, a banned organisation that was once fostered by elements of the Pakistani state to aid its goal of sustaining the anti-Indian Kashmiri Jihad. In these petitions to challenge his detention by the state, the security agencies who had directed his arrest seem unwilling to share evidence to establish that his freedom is a threat to public security. There is a long-standing suspicion that the state shields those who are ‘strategic assets’ and punishes those who are no longer so, making a distinction between ‘good’ and ‘bad’ militants.

C. Missing Persons—The International War on Terror in Pakistan

As noted by the Missing Persons Commission,^[532] the problem of people being picked up, allegedly by the security agencies of the army, started to manifest itself early in 2003. The rate at which people thereafter were being apprehended increased manifold and when, in 2007, the Chief Justice of the Supreme Court was made to take ‘long leave’ by the President General Pervez Musharraf, it was roundly acknowledged that one of the nerves he had touched was by taking up cases investi­gating these disappearances.^[533]

The Pakistani strategy of enforced disappearance was influenced no doubt by the creation of a globalised preventative detention regime for which Guantanamo Bay and the deployment of the ‘enemy combat­ant’ classification has been essential. This multi-tier regime included extraordinary renditions through which additional detentions were parcelled out to offshore facilities, including Pakistan. Both Guanta­namo and the extraordinary renditions programme provided leeway for the US to detain and hold persons that ‘otherwise would have been subject to traditional geographic constraints and their associated legal regimes’^[534] had they been located within the geographic bounds of the United States.^[535] Pakistan’s mimickry of this was aided by the parcellisation of FATA as outside of constitutional protection, but the programme of enforced disappearance is broader than affecting only the population within FATA’s territorial boundaries.

Early petitions to the court, especially those filed under the auspice of the Human Rights Commission of Pakistan, were, in conjunction with investigative reports undertaken by mostly foreign media sources, revelatory for the Pakistani public at large about what was happening. What was almost immediately apparent, but perhaps not as openly discussed, was that the global war on terror had provided an open­ing not only for counter-insurgency campaigns directed at actual or would-be Islamist militants, but that older insurgencies, particularly of the Baloch, were going to be dealt with in the same manner. Thus, of the 99 verified missing represented in an early HRCP challenge to the government, 66 were Baloch.^[536]

At the second hearing of this case, it was reported that a small number amongst the missing had been recovered. This recovery was very much the result of a haranguing that the court gave to agents of Pakistan’s executive, in a manner that was never before imagined, little less administered. Starting in 2006, and, again after the Chief Justice’s restoration in 2009, a large number of petitions were filed and heard. In these, provincial governments, the Ministry of Interior, heads of Pakistan’s intelligence agencies were all summoned by the court to account for disappearances.

In consideration of the person who has gone missing, the testi­monies of the few released reveal far deeper rights violations than should have to be suffered by anyone. For instance, one person who was released was so emaciated and weak at the time that he could not be recognised by family members and died within weeks. He weighed just 35 kilograms. A fairly credible picture of torture, solitary confine­ment and the disorientation that accompanies not knowing the cause of detention, your whereabouts or the likelihood of being released is what emerges from what these people have relayed about their condi­tions of detention.

In 2014, the last of the major ‘missing persons’ case to date was heard at the Supreme Court. In it, the tone in which the intelligence agencies are addressed is noteworthy, with their ‘word’ being taken as its ‘weight in gold’, so that even Chaudhry had been chastened and the inquisitorial nature of the enquiry somewhat reversed.^[537] However, there remains a persistent directive for the discovery and restoring to liberty of missing persons. Notably, the Supreme Court has relied to a greater extent on international law and convention to argue that the practices of forcible disappearance constitute a ‘crime against human­ity’ by the state.^[538]

Two successive civilian governments have responded to provide greater legal cover to the actions of the army and security agencies. The law regarding detention has changed in light of the Actions (in Aid of Civil Power) Regulation, 2011 and the Protection of Pakistan Act, 2014 (PPA). The Actions (in Aid of Civil Power) Regulation— which is applicable to Federally and Provincially Administered Tribal Areas—confers powers of internment on military authorities during the time that a counter-insurgency campaign is being waged. It has had retroactive application to the conduct of a major anti-militant army campaign in the region of Swat, a part of PATA. Broadly, it autho­rises the seizure of property as well as providing the powers to punish ‘miscreants’ in the course of such campaigns, including by death. Its more precise purpose in reference to internment is to mandate appre­hensions on the basis of the commission or the suspicion of crimes that include non-obedience of civilian of military officials. There are few safeguards attached to these internments, which can last as long as a counter-insurgency campaign is underway. As with the global war on terror, there is no precise indication of what the point of terminus of such a campaign would be. A review board of governmental and army officers is the mandated forum for authorising detention beyond an initial period that can last for up to four months. It is reported that there are approximately 1,500 persons currently in such detention centres throughout the areas under the powers of the Action in Aid Regulations. In one recent case, the court called for further particulars about persons deemed to be ‘undeclared detainees’ under the law but in a show of ‘judicial restraint’ conceded that it could only direct that the executive branch desist from detaining persons from parts of Pakistan where there was no such legal coverage.^[539] This was itself a recognition of the fact that intelligence agencies have interned people who are neither residents of the tribal areas nor present there at the time that they were apprehended.

In the PPA section 6 allows for preventative detention for a maxi­mum of 90 days if the government has reasonable grounds to believe that the person is acting in a manner prejudicial to the integrity, security, defence of Pakistan or public order. However the Act itself makes these detentions subject to Article 10 of the Constitution. While the PPA has not been widely used, the existence of the Actions in Aid Regulations has provided the necessary cover for apprehensions of alleged militants from across the country.

The variance is great in terms of the numbers that are circulated about who and how many are held by the state and how many may have perished under conditions of detention and torture. For example, Mama Qadeer, father of a young Baloch nationalist whose mutilated corpse was returned to the family after having been missing for two years, cites 21,000 missing persons from across the country.^[540] A former member of the Federal Task Force on Missing Persons, Faisal Siddique, counters that there is ‘little evidence for such exaggerated figures’.^[541] As with many other historical episodes of such ‘disappearances’ happen­ing within the body politic, it may not be possible to establish certainty about what has been happening within Pakistan over the last 15 years or so, for many years to come.