The spirit of legislation
As our armed forces combat enemies, lawmakers should ensure legislation that promotes fundamental rights of Pakistanis
The writer is a lawyer based in Islamabad
Pakistan’s parliamentary record is littered with laws which create more trouble than they resolve. For a nation which embodies haste, its legislators employ this very strategy in discharging their functions. Consequently, laws are made without being subjected to even the most perfunctory of scrutinies.
To relate one personal incident, the much lauded 18th Amendment was passed in April 2010, and innocuously stated that the Herculean task of decentralisation would be completed by June 30, 2011. Fast-forward to March 2012 finds me pleading to a law ministry official for assistance regarding the legal status of the federal industrial relations commission (since the provinces had, as expected, failed to appoint commissions within the prescribed deadline). After much stalling, his veneer of calm collectedness finally broke. “Madam,” he snapped, “If I had any clue about the legal status of devolution, I would have told you. Perhaps the Cabinet Division can help.”
They couldn’t, obviously. Even if the intentions behind the law were pure, the thought process lacked cohesive discussion and deliberation. By contrast, the US Constitution is a well-explored social contract only because the federalist and anti-federalist debate that preceded it meant that the final draft would be an agreeable one. Legislation by its nature is meant to be debated, discussed extensively, philosophised and drafted. No one expects our parliamentarians to engage in a philosophical exercise in jurisprudence. What one does, and should, expect is a certain level of foresight.
The latest in the bizarre mosaic of laws in Pakistan is the new cybercrimes bill. My first impression from its title, the Prevention of Electronic Crimes Act 2015, was that the law was finally going to plug the vacuum created by the lack of sufficient data protection legislation. However, the bill seeks to criminalise journalistic discourse and harmless banter. No explanation has been offered for how this restriction on free speech is to be reconciled with the constitutional right to information. Furthermore, the powers under the proposed law are discretionary, allowing for arbitrary control of free speech, without any set guidelines to determine what will constitute an offence. While the enforcers will be acting to protect the interests of religion, security etc., how will fair comment and genuine cases of security (or other) concerns be distinguished? The criminality of individuals will be determined solely by the personal opinions of those in office.
It is difficult to comprehend how ‘cybercrimes’ are intended to be policed. Will reliance be placed on honest citizens to report their offending counterparts, and avenge petty grievances all in one? Or will a special branch of an archaic government department be revamped to look over the shoulders of unsuspecting internet frequenters? If information is placed anonymously, how will the offenders be tracked down — or will such instances simply be ignored? What then, is the intrinsic value of a law which cannot be indiscriminately applied? If individuals are being continuously tracked in their movements and activities, what happens if this information falls into the wrong hands?
The lack of research into the value of this scheme is evident in its shortcomings. Pakistan’s preferred system of trial and error has borne more ills than fruits, but there is little evidence to suggest that change is imminent. Whenever a law fails to deliver, amendments are hurried through, once again, without significant deliberation.
The most important question, however, is this: What is the point of this law? While the world evolves towards creating greater freedom and punishment moves from retributive to rehabilitative and preventive, why is Pakistan prompted to adopt stricter policing strategies?
The present scenario recalls the landmark judgment of Lord Hoffman in the British Belmarsh detainees’ case, where the court determined the incompatibility of indefinite detention of prisoners with their human rights. His Lordship stated, “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these … It is for parliament to decide whether to give the terrorists such a victory.”
As our armed forces combat enemies who wish to impose a regime of cruelty and indignity, it is up to our lawmakers to ensure that legislation promotes the fundamental rights of Pakistani citizens. Laws such as this notorious cybercrime bill, if anything, endorse the opinions of those we are struggling to keep at bay. The greater war to be fought, then, is not on the borders, but within the system.
Published in The Express Tribune, May 11th, 2015.
To relate one personal incident, the much lauded 18th Amendment was passed in April 2010, and innocuously stated that the Herculean task of decentralisation would be completed by June 30, 2011. Fast-forward to March 2012 finds me pleading to a law ministry official for assistance regarding the legal status of the federal industrial relations commission (since the provinces had, as expected, failed to appoint commissions within the prescribed deadline). After much stalling, his veneer of calm collectedness finally broke. “Madam,” he snapped, “If I had any clue about the legal status of devolution, I would have told you. Perhaps the Cabinet Division can help.”
They couldn’t, obviously. Even if the intentions behind the law were pure, the thought process lacked cohesive discussion and deliberation. By contrast, the US Constitution is a well-explored social contract only because the federalist and anti-federalist debate that preceded it meant that the final draft would be an agreeable one. Legislation by its nature is meant to be debated, discussed extensively, philosophised and drafted. No one expects our parliamentarians to engage in a philosophical exercise in jurisprudence. What one does, and should, expect is a certain level of foresight.
The latest in the bizarre mosaic of laws in Pakistan is the new cybercrimes bill. My first impression from its title, the Prevention of Electronic Crimes Act 2015, was that the law was finally going to plug the vacuum created by the lack of sufficient data protection legislation. However, the bill seeks to criminalise journalistic discourse and harmless banter. No explanation has been offered for how this restriction on free speech is to be reconciled with the constitutional right to information. Furthermore, the powers under the proposed law are discretionary, allowing for arbitrary control of free speech, without any set guidelines to determine what will constitute an offence. While the enforcers will be acting to protect the interests of religion, security etc., how will fair comment and genuine cases of security (or other) concerns be distinguished? The criminality of individuals will be determined solely by the personal opinions of those in office.
It is difficult to comprehend how ‘cybercrimes’ are intended to be policed. Will reliance be placed on honest citizens to report their offending counterparts, and avenge petty grievances all in one? Or will a special branch of an archaic government department be revamped to look over the shoulders of unsuspecting internet frequenters? If information is placed anonymously, how will the offenders be tracked down — or will such instances simply be ignored? What then, is the intrinsic value of a law which cannot be indiscriminately applied? If individuals are being continuously tracked in their movements and activities, what happens if this information falls into the wrong hands?
The lack of research into the value of this scheme is evident in its shortcomings. Pakistan’s preferred system of trial and error has borne more ills than fruits, but there is little evidence to suggest that change is imminent. Whenever a law fails to deliver, amendments are hurried through, once again, without significant deliberation.
The most important question, however, is this: What is the point of this law? While the world evolves towards creating greater freedom and punishment moves from retributive to rehabilitative and preventive, why is Pakistan prompted to adopt stricter policing strategies?
The present scenario recalls the landmark judgment of Lord Hoffman in the British Belmarsh detainees’ case, where the court determined the incompatibility of indefinite detention of prisoners with their human rights. His Lordship stated, “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these … It is for parliament to decide whether to give the terrorists such a victory.”
As our armed forces combat enemies who wish to impose a regime of cruelty and indignity, it is up to our lawmakers to ensure that legislation promotes the fundamental rights of Pakistani citizens. Laws such as this notorious cybercrime bill, if anything, endorse the opinions of those we are struggling to keep at bay. The greater war to be fought, then, is not on the borders, but within the system.
Published in The Express Tribune, May 11th, 2015.