Raising Buraq and Shahpar

Will they be allowed to run amuck under cloak of secrecy & protection by army, or will they be subject to rule of law.

The Pakistani military proudly announced the birth of its new babies, which came in the form of two unmanned aerial vehicles (or drones) named Buraq and Shahpar. This birth could be hailed as the answer to the prayers of Pakistani anti-drone nationalists, who have long-argued that Pakistan should control drones, rather than the Americans. Yet, after the euphoria subsides, the people of Pakistan should consider what kind of upbringing the drones Buraq and Shahpar should have. Will they be allowed to run amuck under the cloak of secrecy and protection by their military parents, or will they be subject to the rule of law respecting the privacy rights of citizens?

Before discussing the need to institutionalise the use of Pakistani drones through legal procedures, one should recognise the limited purpose for the drones at their outset. The ISPR stated that the drones would be a “force multiplier” which “will substantially enhance their target acquisition capabilities in real time” and “could be gainfully employed in various socio-economic development projects”. As of yet, Pakistan’s drones are not armed and will be used exclusively for reconnaissance.

An unarmed drone could be a valuable information tool for the military in conflict zones as it could save the lives of both civilians and Pakistani soldiers. Further, it is not unreasonable to believe that the military will use these reconnaissance drones, at first, only where necessary, to locate the position of terrorists actively targeting soldiers or civilians.

In conflict zones, countries often set aside traditional constitutional protections in order to deal a heavy and brutal hand to anti-state elements, and then to later revive those constitutional protections once the conflict has ended. During peacetime, the state would respect the privacy rights of citizens by requiring its officers to seek a judicial warrant before searching a home or arresting a suspect. But, in a war zone, the state can capture individuals on the battlefield without any legal red tape or judicial supervision.

In fact, if one could be absolutely certain that Pakistan’s military would only use its drones in declared conflict areas, many would claim the efficacy of drones far outweighs any questions concerning their intrusions on citizens’ privacy. However, chances are very high that, eventually, the use of drone technology could spread to areas like Balochistan or be used in cities like Karachi and beyond. Further, images collected by drones could be used as evidence against suspected terrorists in the Anti-Terrorism Court in the future. If that is the case, one should consider the constitutional problems presented by unmanned aerial vehicles operating without legal limits.

One of the fundamental rights enumerated by Pakistan’s Constitution is Article 14, and it protects the right to privacy of the home. This right to privacy can be ‘subject to law’ or rather can be infringed upon when a law allows for the police to search a house. Traditionally, this has required the police to seek a warrant from a judge before intruding on an individual’s right to privacy. The judge acts as a buffer between citizens and potentially overzealous police officers, and their job is to weigh the right to privacy with the police’s need to investigate a potential crime.

The right to privacy is not only protected through warrants for home searches, but also applies to electronic communications as per the Fair Trial Act which requires the police to seek a warrant before tapping a suspect’s phone or computer. In the same way, surveillance of electronic communications implicates the right to privacy, so do reconnaissance drones that roam the skies with cameras often capable of peering through walls.

While the US has used drones internationally without legal limitation or transparent procedure, their domestic use has been met with opposition. Even before drones were used in states like Idaho, Illinois, Oregon, Montana, and Florida their provincial legislatures passed laws to prohibit the unwarranted use of drones, requiring the police to seek a judicial warrant before using a drone to monitor a suspect.

It is highly unlikely that the Pakistani military would allow for judicial intervention in the use of its newly developed, highly sought after tool. However, if drones are operated by the military in a legal vacuum, their efficacy as a legal tool to prosecute and locate terrorists could be limited despite their increased presence. Therefore, politicians and judges should consider attaching limits to this new technology that respect the constitutional right to privacy and institutionalise the use of drones with judicial oversight through the warrant process.

Not only will this be integral because the use of drones is likely to expand in Pakistan, but also because these aerial vehicles could become armed at one point. If that day comes, it will be imperative for the civilian leaders and judges to have a transparent and fair process in place that respects the rights of citizens to privacy, life and fair trial.

Published in The Express Tribune, November 30^th, 2013.

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