Misrule of Law

Published in Dawn, February 23rd, 2016

THE rule of law is considered to be grounded in four principles: universal accountability, the protection of fundamental rights (including security of persons), fair and due process, and the impartiality of those who deliver justice. Ideally, the rule of law seeks a just and peaceful social order in which the “…law would govern the lives of society members in a way that is not arbitrary, and not oppressive”.

What happens when the law itself turns arbitrary and oppressive? This phenomenon is not uncommon in many societies — both so-called developed and ‘developing’ — where, sometimes, a law itself violates the ‘rule of law’. Such is the case with Pakistan’s anti-terrorism law which has come to be used against workers in the formal and informal sectors. The definition of ‘acts of terrorism’ used in the law is so broad that it is handy in punishing workers who struggle for their rights.

The recent case of the Pakistan Fisherfolk Forum’s general secretary Saeed Baloch is just one example. Called by the Rangers on Jan 16, Saeed disappeared after he visited their office. On relentless pursuit by his wife and friends, he was produced in an Anti-Terrorism Court (ATC) on Jan 26, accused of money-related crimes and placed under three-month preventive detention.

Well-known cases of trade union activists picked up under anti-terrorism laws include those against PTCL trade union workers arrested in Islamabad in 2009; six power loom workers of the Qaumi Labour Movement, Faisalabad, arrested in 2010 and sentenced in November 2011 to 99 years each; Baba Jan and 11 other activists from Gilgit-Baltistan arrested in 2011 and sentenced for life in September 2014. These activists were hardly involved in acts of terrorism; they were only demanding their legal entitlements, seeking recourse to justice and representing thousands of workers.

Why don’t the federal and provincial governments invoke their respective industrial relations acts to deal with industrial disputes? Apparently, there are a few reasons behind resorting to anti-terrorism laws, or, put simply, throwing the ball into the military’s court. First is the farcical ‘national security’ paradigm. Second is the distrust of the judicial system which is considered weak and incapable of delivering speedy justice. Third is the deeply embedded denigration of workers. Labour is not considered a valuable, respectable or essential element in production. For the employers, it is a necessary evil. Labour has been dehumanised in our society. It is not just the state and employers but the so-called common citizenry that has come to think of labour as mafioso when it asks for its due rights and entitlements. These factors have gelled together and led to a ‘let-the-military take-care-of-it’ response.

This response absolves the government of its many responsibilities, ie improving governance, building institutional capacities, making judicious resource allocations so that institutions, including the judiciary, can start delivering. People forget that in the long run the enhanced power of the security forces in the country’s civilian and judicial affairs does more harm than good. Deterrence through force may halt violence and terrorism temporarily but unless the root causes are tackled, militarisation “…undermines constitutionalism, democratic governance and the rule of law” as noted by the International Crisis Group, Brussels, in its 2015 report Revisiting Counter-Terrorism Strategies in Pakistan: Opportunities and Pitfalls.

If we are under the impression that the objective of anti-terrorism laws and the ATA courts is to conduct speedy trials and achieve effective justice with a high rate of conviction, we are wrong. According to a report, the acquittal rate in the ATCs in 2010 was 75pc. The situation in 2014 was not very different: as reported in the media, 205 cases were heard in the two ATCs of Rawalpindi in 2014, but there were less than 10 convictions, while the Islamabad ATC did not convict a single accused that year. The ATC Rawalpindi acquitted Lashkar-e-Jhangvi chief Malik Ishaq in three cases of terrorism for lack of evidence. Neither is ‘speedy justice’ achieved through this parallel judicial system.

In a special meeting of the chief justices of high courts and judges of the ATCs called by the then chief justice of Pakistan in December 2014, it was noted that in the 14 ATCs of Punjab, 1,000 cases were pending. In June 2014, more than 17,000 cases were pending in five ATCs in Sindh. Out of the 17,000 cases in Sindh, around 11,000 were from Karachi. Khyber Pakhtunkhwa, despite being the most terror-hit province, had only 146 cases in its ATC.

Most disturbing is the fact that even civil society organisations have become silent spectators. Recently, when a meeting was called at the HRCP office in Karachi to discuss strategies for Saeed Baloch’s release, only his wife and a couple of NGO workers turned up.

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