Has Pakistan got fed up with human rights? Perhaps, yes. At least, the contents of a constitutional amendment, which got botched recently, speak so. The point to worry is that any next attempt to pass the constitutional amendment would once again encompass tinkering with fundamental human rights enshrined in Articles 8 to 28, Chapter 1 of the Constitution of Pakistan.
It seems that there is a prevalent irresistible thinking somewhere to dissociate fundamental rights from anything called democracy – in the name of national security. This school of thought opines that democracy is unsuitable for the genius of Pakistanis. Several martial laws were imposed but the essence of democracy could not diminish. Now, it is more desirable to detach fundamental rights from democracy, which is failing to serve the country economically.
This school of thought is impressed by models of governance which predicate on a controlled society enjoying structured consent and having reduced opposition. In focus are not just Articles (8-28) in Chapter 1, but also Article 199 which delineates the jurisdiction of the High Court to enforce any of the fundamental rights conferred by Chapter 1. Hence, taken together, if Articles 8-28 are subjected to national security and if High Courts are deprived of their jurisdiction to enforce fundamental rights, the job is done. Pakistan will have democracy sans key fundamental rights. Any writer or speaker can be picked up and detained without being produced before a court of jurisdiction for an indefinite period of time in the name of national security. Nevertheless, it is not known who will define national security.
It is now understandable that national security would overwhelm any proposed constitutional amendment. People would keep on reveling in the thought of having the luxury of democracy, without understanding that the wings of democracy had been trimmed. To deal with democracy in the streets, Section 144, which is a colonial legacy, is available with its modern assistant, the container phenomenon – to block all paths. The point is simple. If Section 144 of the Code of Criminal Procedure can empower district administration to issue orders in the public interest to place a ban on an activity for a specific period of time, federal administration may also be empowered to issue orders in the national interest (in the name of national security) to place a ban on an activity of a person for a period of time. Similarly, under Section 144, if a ban is enforced locally by the police who register cases for violations of the ban, the federal administration may also be empowered to register cases for violations of a ban imposed nationally in the name of national security.
Ironically, this school of thought believes that the act of impounding containers to use for blockades not only serves the economy but also reinforces Pakistan’s image as a business-friendly destination. In principle, a constitutional amendment should have been introduced to do away with the heritages of colonial times, meant for oppression and suffocation. Similarly, in principle, a law should have been passed not to confiscate containers in order to save their owners (who happen to be traders) from being discouraged. Apparently, the container policy is now part and parcel of the city administration to implement Section 144. In the name of national security, Section 144 would be upgraded to engulf the whole country through a constitutional amendment.
If this were not enough, cases pertaining to the supposed violation of national security would run in military courts. Any civilian in the custody of the military in the name of national security would have no right to knock at the door of a high court, which would be deprived of the power of Article 199. The police would also be empowered to assist in purging society in the name of national security. Neither military courts nor their decisions will be challenged in any court of law. Moreover, the newly proposed Federal Constitutional Court in Islamabad would enjoy a monopoly over Article 199 but without enforcing fundamental rights (conferred by Chapter 1) in cases of national security. Other than dissenting writers and speakers, the worst victims would be ethnic nationalists who are now abundant in the western half of Pakistan.
This school of thought thinks that denying fundamental rights in the name of national security can bring about a controlled society with structured consent and reduced opposition. Such a troika is favourable for the economy. In Pakistan, this would be the beginning of a new experiment.
However, the other school of thought opines that the violation of fundamental rights has gone rampant to the extent as if missing persons were no issue. The collective conscience of society is already dead, with just a few raising the voices for missing persons, who may be dead or alive. This school of thought says that the proposed constitutional amendment would legally protect all such past heinous acts of forced disappearances, mutilated bodies, and covert internment centers – and this would be a grave tragedy inflicted on the face of Pakistan through a constitutional amendment by a government proclaiming democracy. In fact, it would be a tragedy of democracy to bury fundamental rights in the name of national security. If someone could read aloud the Lahore Resolution of 1940 and the Indian Independence Act of 1947 to understand the paradigms demanded and options given in return.
Today, Pakistan presents a picture devoid of dialogue with ethnic nationalists, the grievances of whom are piled up. They are not lesser human beings to be expended at the altar of national security. Interestingly, ethnic nationalists demand their rights within the Constitution of Pakistan. The proposed constitutional amendment would be tantamount to changing the goalpost. In such a scenario, ethnic nationalists would run out of options, entering a blind alley.
In short, any such constitutional amendment would unleash unrest in society jeopardizing the economy further.
Dr Qaisar Rashid
The writer is a freelance columnist. He can be reached at qaisarrashid@yahoo.com