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KP Actions Ordinance Should Have Been Nullified Much Earlier

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The Actions in Aid of Civil Power Regulations 2011 was a wartime law that can be simply defined as an inevitable measure that was needed to facilitate the military action in tribal areas. The high court has finally nullified it, but the law should have been ended much earlier, writes Usman Khan.

On 17th October, the Peshawar High Court (PHC) passed a landmark judgment, striking down the KP Actions (in Aid of Civil Power) Act 2011. The draconian law had given unprecedented powers to the armed forced including the authority to hold suspects in interment centres.

When 26th amendment was signed by President Arif Alvi this year, the people of erstwhile Federally Administered Tribal Areas (FATA) celebrated an end to the colonial-era draconian Frontier Crimes Regulations (FCR), which gave the political agent and the state unbridled authority.

The media and Pakistan as a whole celebrated the tribal areas’ merger with Khyber Pakhtunkhwa (KP). However, despite the merger being a step in the right direction, it did not ensure an end to the draconian laws.

The High Court nullified the law recently, but it should have been done away with much earlier.

The Actions in Aid of Civil Power Regulations 2011 was a wartime law that was promulgated by the Pakistan People’s Party (PPP) government in 2011. This law can be simply defined as an inevitable measure that was needed to facilitate the military action in tribal areas.

War time laws are draconian in nature and that is understandable since military deployment is needed in such extraordinary circumstances.

But we were told that the operations against terror have succeeded, and now normalcy has returned to the tribal areas. In 2017, DG ISPR General Asif Ghafoor stated that 95% of the IDPs had returned to FATA and the last clearance operation phase ended in February 2017. The question now is that why was such a law still in place? The merger process should have included the steps to end these discriminatory laws.

To understand the seriousness of the situation and the fact that the law was in place until recently, we must first understand what the act was all about.

The Actions (in aid of civil power) Act is based on 8 chapters, 26 sections and 3 schedules and was placed by the president using the powers granted to the office under Article 247(4) of the constitution. It was given the power of retrospective effect, meaning that it was promulgated in 2011 but came into effect from 1st February 2008 which was in violation of the fundamental right under Article 12 of the Constitution. This Article of the Constitution provides protection against retrospective punishment.

Chapter 1 of the act deals simply with definitions composed of section 2 and chapter 2 which is requisition of armed forces meaning where and how they will be deployed and how they will help the civilian agency.

Chapter 3 deals with conduct of the armed forces. Under section 4(1)(a), they can ask the civilians to vacate any area. Under section 4(3) the armed forces for the implementation of subsection 1 and 2,

“The Armed Forces are authorised to use force, arms and ammunitions, including but not limited to firearms, weapons and air power etc to achieve the objective during any armed action and to take any action, measures, decision that is necessary in this regard.”

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The above means that the armed forces were not limited to any action or usage of weaponry to achieve the objectives mentioned in subsection 1 and 2, which might be acceptable in war but this act has been there for the last 3-4 years when there was no war anymore.

So if the armed forces ask the civilians to vacate their village or town under section 4(1)(a) then they will have to. They have no option and no legal cover. This is a violation of Article 14, 23 and 24 of the fundamental rights.

Section 5 of this chapter points out that in case of any misuse of power, a soldier shall be tried by the hierarchy of the armed forces. Chapter 4 deals with powers during action in civil aid whose section 6 provides additional authorization where subsection b states,

Enter and search any property or place where there is any apprehension that miscreants may be hiding or weapons, material or other related suspicious things are kept and the same are likely to be used for any offence under this Regulation.”  

Thus, the armed forces could enter any building or house without any notice or court order and could search the place. These raids once again violate Article 14.

Subsection d allows the armed forces to gather all information through any means from the miscreant. What does ‘any means’ mean? It has not been defined and as often it is, when things are not defined, civil rights are violated.

Chapter 5 deals with internment and section 9 subsection (1) states,

The Interning Authority shall intern any person who,–

  1. May obstruct actions in aid of civil power in any manner whatsoever; or
  2. if not restrained or incapacitated through internment shall strengthen the miscreants ability to resist the Armed Forces or any law enforcement agency; or
  3. By any action or attempt may cause a threat to the solidarity, Integrity or security of Pakistan;
  4. Has committed or likely to commit any offence under this Regulation so that the said person shall not be able to commit or plan to commit any offence, during the action in aid of civil power.

With subsection (1)(1) we see that the regulatory officer may intern any officer that stands in the way. For instance, if the armed forces try to enter a house and the person refuses, then he can be interned.

If they ask to vacate an area and the people don’t, then the entirety of the people can be interned. In an area where we proudly state that war is over and peace has been established, people can still be taken to internment camps simply on the basis of refusal to let their fundamental rights be violated.

Subsection 8 provides for the draconian thought of “Guilty until proven innocent” where any interned person shall be deemed to have been interned validly. Any man taken under section 9 will have to prove his innocence under this regulation whose punishment under section 17 shall be death or imprisonment for life or imprisonment for ten years and fine. Plus in all the punishments, forfeiture of property is an additional penalty.

Section 19 admissibility of evidence as subsection 2 states,

Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (P.O. 10 of 1984) or any other law for the time being in force, any member of the Armed Forces, or any authorized official deposing on his behalf in or any official statement or before the court to prove any event, offence or happening, shall be deemed to have proved the event, offence or happening by his statement or deposition and no other statements, deposition or evidence shall be required. Such statement or deposition shall be sufficient for convicting the accused as well.”

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So if the armed forces or the official recounts the event before the court then that event shall be deemed to be proven in court and the court shall not require any other statement or corroborative evidence. That statement alone is sufficient for the charge of guilty.

So not only is the intern considered guilty beforehand, but the officer simply has to recount the event in his words and state that he is guilty and he will be deemed guilty. A violation of every single fundamental right.

Section 23 allows indemnity, meaning that no legal recourse is available for any act done under this regulation.

A person interned or wronged or have his property vacated or taken cannot in any way file any suit for justice because that act will be under the protection of section 23.

The last section 26 is validation which states,

Anything done, action taken, orders passed, proceeding initiated, process or communication issued, powers conferred, assumed or exercised, by the Armed Forces or its members duly authorized in this behalf, on or after the 1 February, 2008 and before the commencement of this regulation, shall be deemed to have been validly done, issued, taken, initiated, conferred, assumed, and exercised and provisions of the this regulation shall have, and shall be deemed always to have had, effect accordingly.”

It empowers all actions of the armed forces to be legal and all orders passed to be judicial.

As we can see the law is an infringement of every single fundamental right and this was made legal post-merger by the KP Assembly which passed the continuation of laws in erstwhile FATA act 2019 and provided for continuation of all laws mentioned in section 3, which includes the AACP act.

This was the single most unjust act against the people of erstwhile FATA that Pakistan had committed. Post-merger, the people of tribal areas were given the illusion of freedom only to see the continuation of the most brutal act Pakistan ever implemented in the region.

The Peshawar High Court must be applauded for declaring the act as a violation of fundamental rights. But its continuation post-merger is nothing short of the infringement of those rights. And why post-merger alone? Were the people of FATA not Pakistanis before the merger? Were they children of a lesser god before they were merged into the pure land?

The people of tribal areas need healing and all discriminatory practices against them must bring to an end.

 

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