All states who are signatory to the Declaration of Universal Human Rights adopted by the United Nations General Assembly, guarantee those rights in their respective constitutions. However, there is consensus amongst the legal community and advocates of human rights, that these rights were not absolute as their enjoyment was contingent upon the citizens owing unqualified allegiance to the state and the constitution. The state can suspend or limit the exercise of these rights in the interest of public peace, to prevent the violation of the rights of others by individuals and groups, and to preserve the integrity and security of the state. The constitutions also provide for the declaration of an emergency, or at a time of war, when fundamental rights can be suspended.
No constitution allows for insurgencies or the military to challenge the writ of the state. These are extraordinary situations that pose an existentialist threat to the state. Therefore, the state is justified in resorting to extra-constitutional measures and even limiting or denying fundamental human rights to those who are involved in such subversive activities and also to use its military muscle when required.
Pakistan has been confronted with the phenomenon of terrorism for more than a decade and unfortunately it has rolled on unchecked due to a lack of will on the part of successive governments.
Terrorists are a faceless enemy and the elimination of the menace of terrorism not only requires military means, but also legal backing to ensure they are convicted in the courts of law. It requires the vigilance and cooperation of civil society and the readiness of the people to inform security agencies about the presence of any suspicious activity.
History is replete with examples of nations dealing with insurgents and terrorists through extra-constitutional means, the latest being the Tamil militancy in Sri Lanka. In Pakistan, the terrorists are not only confined to the tribal regions but their operatives and sympathizers have penetrated almost all the big and small cities of the country; from time to time, they keep targeting the civil and military, like the attack on Karachi airport, an airplane in Peshawar, the Mehran base in Karachi and Kamra Complex, to name a few.
The promulgation of the Pakistan Protection Act, 2014 needs to be understood and appreciated in the backdrop of foregoing realities. Some of its provisions might be in conflict with the fundamental rights provided in the constitution under normal circumstances and one could have no qualms in accepting the argument of the advocates of the human rights in this regard. But we are faced with a situation where the state itself is in danger. Those who challenge the writ of the state or the constitution and pose a security threat to the country lose their entitlement to the fundamental rights guaranteed by the constitution. Therefore, the enactment of this Act was absolutely essential to address the flaws in the legal system. The grant of powers to the security agencies to detain and arrest suspects has already started showing results. Reportedly, more than 500 suspected terrorists have been arrested from different provinces and many more are expected in the days to come.
It is regrettable to note that some people are vehemently opposed to this piece of legislation, and one of the parliamentarians has challenged it in the Supreme Court. They conveniently forget the fact that the state comes first and its security takes precedence over all other considerations. We are faced with a cataclysmic situation, which requires civil and government institutions to act in unison to eliminate this festering cancer. If the doctrine of necessity could be invoked to provide legitimacy to dictatorial regimes, why could it not be applied to a situation where Pakistan is at the edge of the precipice. The judiciary therefore, needs to be more circumspect and act in the interests of the state. Fundamental rights or no fundamental rights, Pakistan needs to be protected.
The argument that this law could be misused by the security and law enforcing agencies, does have some element of validity. The powers to the security agencies and army to arrest and detain suspects and shoot on sight, would have been considered a draconian law under normal circumstance; but there is a bigger picture here. The state is justified in doing what it can do, to safeguard its security and the lives of its citizens.
The writer is a freelance columnist.
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