Hmmm ok here is another fun thing. This article was published in my firms legal magazine that we distribute in the legal circles of adjoining areas i.e Lahore, sheikhupura, gujranwala, faislabad, islamabad e.t.c. So let me reproduce this.
This is best read with another piece published beforehand
nayadaur.tv
That should be good enough for an understanding
@Nilgiri @Joe Shearer @Waz @Kaptaan @VCheng @T-123456 @Webslave
I really should write on AFSPA as well.
It was a scene witnessed by the world countless times. The drama played out just like it has countless times before. The actors came to the stage and spoke their worth and left. The world witnessed and changed the channel like an old show witnessed so many times. The stage was the United Nations and the actors in the play were Pakistan and India who tore each other to shreds in front of the world by highlighting the gross violations of human rights of the opposite country. Usage of ‘Whataboutism’ was eloquently displayed as if the only skill required for the job was just this and as such was utilized to hide their own violations. The world saw two powers become nothing more than mudslinging kids in a playground, the people suffering in those areas saw those states ignore everything in their attack on the other, felt a sense of hopelessness. Their placards in their hands, their loved ones dead or missing and their possessions taken, all they saw is the cruel fact that the two nations ignored those citizens asking for their rights, and decided to attack each other and the world, tired of both of them, chose to tune out.
It is an absolute fact that both countries have passed legislations which has allowed their armed forces and paramilitary security forces to circumvent the laws which protect the dignity of each individual and have given them immense power to use all means necessary against their own citizens. They did it under the banner of security and public order. In fact such is the hypocrisy of the two states that both employ these legislations which are similar in spirit and words, The parliamentary debates when bring these legislations are similar, the implementation of these laws, is similar and even the reasons are exactly the same.
The Indian version of such a legislation is called the ‘Armed Forces Special Powers Act 1958’ which has been in force in the areas of Jammu and Kashmir, Nagaland, Assam, Manipur, some districts of Arunachal Pradesh. The legislation itself is is a 7 section legislation. Section 2 of it deals with definitions where disturbed area has been defined in line with section 3 which states that any area which the state considers disturbed or dangerous and requires armed forces to be deployed is called a ‘Disturbed Area’.
Now section 4 is one which allows special powers to the armed forces. The powers include maintenance of public order and for that they can open fire upon any group after giving it a warning and they are allowed even if the people protesting are unarmed as long as they are above 5 persons. Now this is in violation of Indian fundamental constitutional rights which allow a person to have a ‘Right to Protest’ and ‘Right to Life’
Then section 4 subsection ‘c’ allows the armed forces to arrest any person without a warrant as long as they have any suspicion of his involvement with any group. This is against the fundamental right of ‘Right to Liberty’ and ‘Right of dignity of a man’
Then section 4 subsection ‘d’ allows the armed forces to search any property of a person without a warrant which violates the individual’s ‘Right to property and privacy’ as well as ‘violation of dignity’.
Lastly the act protects the person committing the above from the reach of law by stating that no legal proceeding shall be brought forward against the person committing the act which allows violators to escape the law and the most major Right that all individuals have which is ‘Right to justice’ and ‘Right to fair trial’ are taken away.
The above paves way for gross human right violations, which has created a grave situation in states where AFSPA has been employed and the situation in those states, the discontentment, is only growing stronger and stronger by the day. It is the oldest law of nature that oppression is only a short term action and never a long term solution. Unfortunately Pakistan stands no different in this hypocrisy built upon the bodies of innocent people. The name of Pakistan’s legalized rights violations law is called ‘Actions in Aid to
Civil Powers Act 2011’ which is based on 8 chapters and 26 sections along with 3 schedules.
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 which ranges from warning citizens from gathering or asking them to vacate their homes or villages or locating miscreants along with others.
“The Armed Forces are authorized 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.”
Section 6 allows them to enter any property without warrant just like AFSPA
Chapter 5 deals with internment and section 9 subsection (1) states,
The Interning Authority shall intern any person who,–
May obstruct actions in aid of civil power in any manner whatsoever; or
if not restrained or incapacitated through internment shall strengthen the miscreants ability to resist the Armed Forces or any law enforcement agency; or
By any action or attempt may cause a threat to the solidarity, Integrity or security of Pakistan;
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.”
So if the armed forces or the official recounts the event before the military court then that event shall be deemed to be proven in the said court and the said 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.”
As you can see above the two laws are absolutely similar in terms of powers provided and actions legalized. The spirit of the law is the same and the objective is singular. Legalize the acts which violate the human rights of an individual.
The people of Baluchistan and Khyberpakhtunkhwa are under this law and the people over there are in constant danger of their human rights being violated. In this way the two countries have legalized their human rights violations and if any lawyer or civil activist bring them to court, then the judges themselves find it difficult since the legal chains placed make sure that those human rights violations are a legal act by the perpetrator. Such excessive actions have repeatedly sparked protests in both countries but they are ignored by the state.
The strength of the law comes from the populace, the state and from the laws which form the chain that protects the individual however when a law is passed that contravenes or weakens the other law in force then that chain is broken and every form of rights violation is able to take place. The law enforcement agencies in these areas are confused as to which law they should implement. Whether they should look for the missing person or simply ignore it as an act under AFSPA or AACP. This creates a deteriorating affect to the law and order situation as the law enforcement agencies become the abuser and violator themselves leading to a social breakdown. The populace in question truly becomes hopeless. Their queries are ignored due to the law in place, their forums for justice are taken away from them due to the legalization of such violations and their protests are brought under crackdowns under the excuse of ‘Public Order’. In such a situation what should the populace do? What options have the states in question left them?
The two states have abandoned those citizens and are only interested in attacking the other and throwing mud at them rather than introspect and listen to the genuine demands of the people that are under such siege. We, the citizens of the two countries, must stand up against such oppression and demand that the rights of the people must be protected and for this we must support the civil societies, the voices of reason, the news agencies and journalists that threaten their own safety to uncover these violations and most of all we must support the protesting people who are demanding the most genuine of demands. The demand that their fundamental rights be protected.
This is best read with another piece published beforehand
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.”
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,–
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.
- May obstruct actions in aid of civil power in any manner whatsoever; or
- if not restrained or incapacitated through internment shall strengthen the miscreants ability to resist the Armed Forces or any law enforcement agency; or
- By any action or attempt may cause a threat to the solidarity, Integrity or security of Pakistan;
- 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.
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.”
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.
KP Actions Ordinance Should Have Been Nullified Much Earlier - Naya Daur
3SharesThe 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...
nayadaur.tv
That should be good enough for an understanding
@Nilgiri @Joe Shearer @Waz @Kaptaan @VCheng @T-123456 @Webslave
I really should write on AFSPA as well.
