Pakistan: no more preventive detention

An opinion piece by Reema Omer, Legal Adviser, ICJ Asia & Pacific Programme

Reports of the Government’s campaign to arbitrarily detain hundreds of Pakistan Tehreek-e-Insaf and Pakistan Awami Tehreek workers and activists as the parties launched their protests in Islamabad, illustrate, once again, the dangers of Pakistan’s preventive detention regime and its potential to be used as a tool to clamp down on fundamental freedoms.

Not only is preventive detention incompatible with human rights law, the long history of abuse of preventive detention in the country suggests that Pakistan must reconsider its laws and policy on arrest and detention as a matter of urgency.

Preventive detention is a form of administrative detention, ordered by executive authorities, usually on the assumption that the detainee poses future threat to national security or public safety.

Unlike regular detention under criminal law, its immediate aim is often not to bring criminal charges, much less to try the detainee in a court of law.

In the sub-continent, preventive detention dates back to the colonial era. Under the British Raj, executive authorities had sweeping powers to preventively detain individuals on a wide range of grounds including threat to public order and national security.

After its creation in 1947, Pakistan retained this security-oriented strategy in response to post-independence violence and instability, sacrificing fundamental rights and freedoms in the name preserving order and peace.

Justified at that time as an exceptional measure being adopted for exceptional circumstances, preventive detention as part of the supposedly provisional extension of state control and curtailment of individual rights has over time become a normal paradigm of governance.

Preventive detention prominently featured in all post-independence constitutions: 1954, 1962, and 1973. Pursuant to these provisions, many laws have been passed providing for detention without charge including the Security of Pakistan Act in 1952, the West Pakistan Maintenance of Public Order Ordinance in 1960, the Anti-Terrorism Act in 1997, and most recently, the Protection of Pakistan Act in 2014.

Generally, preventive detention is prohibited under international human rights law.

The right to liberty is a bedrock standard of human rights, recognized by Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified in 2010, and all major international human rights treaties and national constitutions.

International human rights law and standards only allow for preventive detention pursuant to a lawful derogation following a declaration of a state of emergency and, even then, any act of detention must be narrowly time limited and justified in accordance with strict grounds of necessity and subject to judicial control.

The practice of governments circumventing the criminal justice system, by preventively detaining people without having to bring recognizable criminal charges and guarantees of a fair trial is, however, incompatible with the right to liberty and the fair administration of justice.

It is striking that Article 10 of Pakistan’s Constitution, 1973, allows Parliament to make preventive detention laws during peacetime on a number of grounds including prejudicing the integrity, security or defense of Pakistan, the external affairs of Pakistan, and public order, expressly excluding safeguards such as prompt judicial control and legal representation.

Pursuant to Article 10, Parliament has passed extraordinarily repressive laws such as the recently enacted Protection of Pakistan Act, 2014, which allows for individuals to be detained at undisclosed locations, without access to family or lawyers, putting them at a risk of enforced disappearance, torture and ill-treatment.

Subsequent military and civilian governments in Pakistan have routinely used preventive detention for political purposes to silence and intimidate critics and opponents, justifying the practice on the grounds of security and order.

Some of the biggest victims of this misuse have included activists belonging to nationalist and separatist movements; members of Communist parties; political opponents of governments in power; human rights defenders; and more recently, “terrorism” suspects.

This abuse has seriously undermined the enjoyment of fundamental rights such as freedom of expression, freedom of association and the right to political participation in the country.

Ironically, while Pakistan has condemned the United States’ indefensible practice of lengthy and arbitrary administrative detention of terrorism suspects (most prominently in Guantanamo Bay), Pakistan’s security legislation is modeled largely on the same detention regime.

This is despite the fact that the US detention policy, especially at Guantanamo Bay, has been widely denounced as falling outside the rule of law.

There is evidence, for example, that hundreds of people were and continue to be detained unlawfully and arbitrarily for long periods at Guantanamo Bay on suspicion (often unsubstantiated) of involvement in or connections with terrorist groups.

Even officials involved in the administration of Guantanamo Bay have called it “America’s most notorious prison – a prison that should have never been opened”, and a mistake that has validated a very negative perception of the United States.

A security strategy based on compromising human rights can often generate new resentment, fuel existing hostilities, and give rise to a sense of victimization, resulting in a vicious cycle of human rights abuses that further damages the rule of law, peace, and security.

As the International Commission of Jurists’ panel of Eminent Jurists points out in its report based on a three-year comprehensive global survey of post-9/11 security legislation, human rights are not, and can never be, a luxury to be cast aside at times of difficulty.

Instead, providing security and respecting human rights both form part of a seamless web of protection incumbent upon the state.

Pakistan’s pervasive security-centered discourse is unchanged since independence, and human rights continue to be explicitly sacrificed to vague and broadly defined national security priorities. But while the discourse has remained unchanged, objectively, security has got progressively worse.

The time has come for Pakistan to have a paradigm shift in its security strategy and move towards the recognition that human rights and security concerns are complementary, and not antagonistic to each other.