Empowering the army under Article 245 of the Constitution (which means that its actions cannot be challenged in any court), the surreptitiously promulgated ordinance authorizes it to ‘establish security posts,’ ‘possess and occupy any property,’ ‘enter and search any property’ and to intern any person in special ‘internment centres’ that may be set up anywhere in the province.
Further, it says that statements by personnel of the armed forces will be enough as evidence of offence committed, with no further proof needed. “Notwithstanding anything contained in the Qanun-e-Shahadat, 1984, any member of the armed forces deposing or any official statement before the court to prove any offense shall be deemed to have proved the offence and no other statements, depositions or evidence shall be required. Such statement or deposition shall be sufficient for convicting the accused as well,” in the words of the Ordinance itself.
After breaking the backbone of militants, the state should have strengthened civilian rule and expanded constitutional writ over the merged tribal districts and the province
What are the various ‘actions in aid of civil power’ that the army has been authorised to perform in KP? These include a series of measures such as armed action, mobilization and stationing of troops. For how long? “Until the orders under which the troops were called are withdrawn in writing,” it says. Thus even cantonments may be set up under it, no questions asked. After all, not long ago, a cantonment indeed was set up in Swat administered under a similar regulation for provincially administered tribal areas (PATA) promulgated in 2011 in the thick of militancy.
The latest assault on civilian rule would not have even been noticed but for a petition pending before a two-member bench of the Peshawar High Court challenging the special laws made for erstwhile tribal areas during the last decade. Besides questioning the constitutionality of the special regulations the petitioner, a lawyer, maintained that after the merger there was no justification for the continuation of special regulations in the erstwhile tribal districts. It was discrimination against the people of tribal areas, the petition argued, and urged the court to strike them down as well as declare internment centres established under it as unconstitutional.
When the bench of Chief Justice Justice Waqa Ahmad Sethi and Justice Ahmad Ali began hearing last week, the advocate general threw a bomb shell: the government had promulgated the KP Actions in Aid of Civil Power Ordinance 2019 on August 5, and that was applicable to the entire province, he said. Since it was applicable throughout and not just in tribal areas there was thus no discrimination, the government argued before the court and a stunned audience.
The regulations ‘actions in aid of civil power’ were first issued in June 2011, separately for erstwhile federally administered tribal areas (FATA) and the provincially administered tribal areas (PATA) during the Taliban insurgency in Swat and Malakand. The main purpose of these regulations was to give legal cover to hundreds of suspects held in custody for years. That is why the regulations were also given back dated effect from 2008 to bring into the open all suspects held in custody and try them in open courts.
After breaking the backbone of militants, at least it is so claimed, the state should have sought to strengthen civilian rule and expand the constitutional writ over the merged tribal districts and the province. Instead, the miltablishment has decided to further encroach upon the civilian space and apart from tribal districts, taken over control of the entire province. Why do something now that was not done even when Pakistan was said to be facing an existential threat?
The ordinance is part of a pattern of unceasing creeping coup and a ceaseless capture of commanding political and economic heights of the country by the miltablishment. The powers once acquired by it are not only not abdicated easily but even expanded further. The example of Sindh Rangers whose special powers of arrest and detention are renewed every three months is before us. As a result, police is weakened as Rangers are reluctant to give up the position of power and privilege. The Supreme Court verdict in Faizabad dharna and its report in the Quetta massacre illustrate how the invisible, unaccountable establishment has expanded its space.
This creeping coup advancing menacingly must come to an end if the country is to survive. Unfortunately political parties have failed to protest against it forcefully. A few months before her death, late Asma Jehangir thought of a beginning by forming a small group of committed democrats, beyond party politics, to fight against the creeping coup. She spoke about it in her close circles. Unfortunately, she did not live long enough to take the idea forward. Isn’t it time to take her idea forward?
The writer is a former senator