The Hammer
The writer is a lawyer, formerly practising and teaching law in Lahore, and currently based in Singapore. He holds an LLM from New York University where he was a Hauser Global Scholar. He tweets @HNiaziii
For the dissenting voice in Pakistan, the coloniser never left.
Their instruments for curbing political dissent are always kept within arm’s reach by a state whose insecurities know no fundamental rights, no morality, and no limits.
The Security of Pakistan Act in 1952, the Maintenance of Public Order Ordinance in 1960 (MPLO), the Defence of Pakistan Ordinance in 1965, the Anti-Terrorism Act in 1997, Actions (in Aid of Civil Powers) Regulation of 2011, and the Protection of Pakistan Act in 2014, are all examples of enactments which adopted colonial models of preventive detention which can be traced back to the East India Company Act of 1793. This model involves granting executive functionaries with broad powers to detain an individual without charge in the interests of public order or safety.
Dr Ammar Ali Jan is familiar with the remnants of the colonial apparatus that still exist in our state.
He has been on the receiving end of its greatest hits, with the MPLO the most recent ghoul dragged out of the colonial crypt. The paranoia he has created in the mind of the state has reached such heights that the Deputy Commissioner, Lahore found himself describing Dr Jan as the embodiment of fear itself.
When the holder of a Cambridge doctorate, exercising a constitutional right, makes a civil servant hide under his bed, well, the civil service has a problem.
Dr Jan was participating in the student solidarity march which has a reasonable demand: the restoration of student unions. This demand is not only reasonable, but also lawful: freedom of association is a fundamental right under Article 17 of the Constitution, and in 1993 the Supreme Court held that student unions should be restored. The protest was therefore neither a crime, nor a threat to anyone.
In the absence of an unlawful act, the Deputy Commissioner still felt compelled to pass an order depriving a man of his liberty for 30 days. The least he could do was give plausible reasons for why he felt this was necessary — he had none. The order makes sweeping rhetorical statements, but doesn’t address why a deprivation of liberty is necessary.
The order to detain Dr Jan flows from Section 3 of the MPLO which grants broad discretion to detain a person without charge. Many critics argue that the MPLO has been historically misused. I disagree. The MPLO has been used exactly the way it was intended: as a means to override due process and clamp down on political dissent. That is why Ayub Khan created it; that is how it has been used.
Despite the broad powers given to the executive under the MPLO, the courts have set down certain standards to limit its use. These standards leave no doubt that the order passed against Dr Jan is illegal.
In the general jurisprudence regarding preventive detention, the courts have held that such orders cannot be passed in a “routine and mechanical manner”. In Ghulam Jilani v Government of West Pakistan (1967), the Supreme Court held that it was imperative that any order for preventive detention be based on reasonable, objectively verifiable, grounds. There must be credible evidence of an act that would cause prejudice to public order or safety.
In short, “symbol of frightens”, doesn’t quite cut it.
The state’s problem is that it uses a hammer to strike every challenge to the status quo. This ideology has become ingrained in Pakistan’s legal system. There are far more laws criminalising political speech than protecting it. Freedom of speech and liberty have become illusory promises.
Enabling legislation on preventive detention is Article 10 of the Constitution. Article 10 permits the practice if it is in the interests of public order, safety, and the security of Pakistan. The MPLO is perfectly valid under the constitutional framework. In this aspect, the Constitution is at odds with international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR).
The ICCPR allows for preventive detention in cases of a national emergency pursuant to a derogation order (Article 4). Even then, preventive detention cannot be used arbitrarily. According to General Comment No 35, the word “arbitrary” means not just that the arrest be lawful, but it must also conform to broader principles of justice and dignity.
Article 10 of the Constitution does not qualify the use of arbitrary detention on the existence of a national emergency. Instead, it puts all its hopes in the broadly worded restrictions in its text. Restrictions that have historically been interpreted quite differently depending on the judicial personality reading them.
What is perhaps most unfortunate is that no political party, regardless of the historic weaponisation of preventive detention, has tried to remedy this problem. The MPLO was made in 1960, it still exists today. It is a sign of how little tolerance our political system has for dissent that such weapons continue to be kept in the arsenal of the state.
Dr Jan’s preventive detention order may be illegal, but the problem the dissenting voice faces in Pakistan is far larger than just one order. The state has far too many weapons to wield against legitimate dissent that challenges the status quo. It has enough people ready to pass flimsy orders to protect its preferred ideology. It has a Constitution that justifies the practice of preventive detention.
And so, the hammer will remain, ready to crush the liberty of people if they raise a voice against the apathy of the state.
Published in The Express Tribune, December 1st, 2020.
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