Fundamental rights to peaceful protest and due process should not be sacrificed as a result of Pakistan’s political strife. Non-state actors, both domestic and foreign, contribute to a culture of lawlessness via violence, abuse, and social and religious intolerance. And this has recently been the case in Pakistan.
There are numerous reports that the government or its agents committed arbitrary and unlawful arrests. There were reports that the members of marginalized racial and ethnic communities were overrepresented among the victims of some abuses. Speaking about the rule of law in Pakistan is fatuous. This is a state where “might is right” and anarchy, in its worst connotations, rules supreme.
In terms of enforcement, the government has failed to reform the criminal justice system, resulting in the police, paramilitary, military, and state intelligence services having total control. According to the Preamble of the Pakistani Constitution of 1973, the people of Pakistan can thrive and reach their proper and honoured place from within, which appears to be a gloomy reality for the welfare state.
The grim reality facing Pakistan, which is struggling on political, social, and economic fronts, is that the nation has yet to confront the evils ailing its core. Pakistani society is polarized into “haves” and “have-nots”. With the economic gap widening, the masses, with barely enough for two square meals a day, harbor hatred against elites that live in their “dreamland” where all is well. This polarization has yielded intolerance, illiteracy, militancy, and unemployment; and, as a result, the moral fabric of the society is fast unraveling.
There have been a lot of unconscionable acts committed by Pakistani government agencies lately. Authorities seldom investigate or punish government officials for reported human rights abuses or acts of corruption. This results in a lack of accountability of security agencies regarding violations of the rights to life, to freedom from torture, and to liberty and security of person. The law enforcement and the authorities should display restraint and respect for human rights and the rule of law. Lack of government accountability, and abuses, by security agencies, often go unnoticed, fostering a culture of impunity among perpetrators.
It additionally necessitates the implementation of Pakistan’s International Human Rights obligations. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials stipulate that security forces must utilize the minimum necessary force at all times. When dispersing violent assemblies, firearms may solely be employed when less harmful alternatives are not feasible, and solely to the minimum extent essential. Law enforcement officers may resort to lethal force solely when strictly indispensable to safeguard life.
Could the State of Pakistan, if it so choose, deprive its inhabitants of their fundamental rights? The concept of fundamental human rights is such that even if the State wanted to, it cannot take them back. Access to justice is one of the basic rights.
The Constitution of Pakistan also provides for preventive detention for individuals posing a threat to public order, as per the Maintenance of Public Order Ordinance, 1960, which extends to three months but can be further extended up to one year. The higher judiciary, in various rulings, has mandated that preventive detention orders, whether under the MPO or the ATA, must satisfy certain criteria. The detaining authority must substantiate its order and all the grounds cited with significant material evidence of the detainee’s prejudicial activities, and it must present all the evidence before a court to allow for the assessment of the order’s lawfulness.
Allegations of arbitrary arrests and detention have also been made in connection with counter- terrorism operations. Prolonged pre-trial detention under counter-terrorism legislation remains a serious concern. The Protection of Pakistan Act, 2004 allows for preventive detention for up to 90 days and grants law enforcement officials powers to carry out searches without a warrant and to arrest people without judicial approval for a range of offences.
These extensive powers are potentially incompatible with Article 9 of the International Covenant on Civil and Political Rights (ICCPR). Physical abuse of criminal suspects in custody allegedly causes serious injury or death of inmates. Lengthy trial delays at the start and conclusion of trails and failure to effectively investigate, discipline, and prosecute those responsible for killings contribute towards a culture of impunity. Last October the Senate of Pakistan passed a Torture and Custodial Death Act. The Act which, for the first time, criminalizes torture by a public official or person working in an official capacity, but is of less use. The use of torture and other ill-treatment remains a routine.
The Constitution of Pakistan establishes safeguards concerning apprehension and confinement in Article 10. It states, “(1) No individual who is apprehended shall be held in custody without being promptly informed of the reasons for such apprehension, nor shall they be denied the opportunity to seek counsel and be represented by a legal professional of their choosing. (2) Every person who is apprehended and detained in custody must be presented before a judge within a timeframe of twenty-four hours from said apprehension … and no individual shall remain in custody beyond this period without the authorization of a judge.”
The domestic legislation does not include provisions for an autonomous mechanism to oversee the conditions within prisons, thereby making it difficult to assess compliance with the ICCPR and the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Many inmates enter the correctional system with preexisting mental ailments, which worsen during confinement. Pakistani law mandates that all detainees are brought before a court within 24 hours, aligning with the International Covenant on Civil and Political Rights, to which Pakistan is a signatory.
The Pakistani authorities must cease their arbitrary arrests of political opposition activists and peaceful demonstrators. Any individual engaged in acts of violence should be appropriately charged, and their due process rights should be respected and upheld, considering the fundamental guarantees enshrined in the Constitution.
The Code of Criminal Procedure, 1898, elaborates on these safeguards in more comprehensive terms. According to its provisions, a judge determines whether a detainee should be remanded to police custody, which may last for a maximum of 15 days. Once the police conclude their investigation and submit a police report, a detainee may either be remanded to judicial custody or released.
Could the State of Pakistan, if it so choose, deprive its inhabitants of their fundamental rights? The concept of fundamental human rights is such that even if the State wanted to, it cannot take them back. Access to justice is one of the basic rights.
