LET’S reflect on a likely situation during military operations. Take the Rah-i-Rast operation in the north-west as a case in point — military personnel advance to gain control of a compound.
They enter the premises after much carnage and cross-fire to finally take the militants into custody.
The question is: what should now be done with these militants who either surrendered or were arrested while attempting escape? In reality, the number of detained militants must exceed hundreds. Their treatment is likely to pose a serious legal challenge to the government, which so far has not clarified the precise legal and constitutional category of Operation Rah-i-Rast.
Is it simply a ‘law-enforcement’ action or one ‘in aid of civil power’ under Article 245 of the constitution? Or is it to be referred to as an ‘internal disturbance’ in the context of Article 232 that permits the imposition of emergency? In any case, lawful authorisation to conduct the operation must be properly documented, otherwise individual members of the army could face allegations of war crimes or of committing excesses.
Let’s assume that Rah-i-Rast has been undertaken for the cause of civil power. In which case, the fundamental rights of detained militants effectively stand suspended. The detention period of these militants can continue for as long as the operation lasts. From amongst the captured or detained, there may be some who are referred to as ‘enemy aliens’; they are specifically barred from the protection of their fundamental rights under Article 10(9) of the constitution.
The detention of militants during the progress of the conflict would be permissible and legal and under the international law regarding hostilities such a detention is referred to as ‘internment’. The edict relating to internment is still evolving but it permits the retention of captured militants by the armed forces at least until the duration of the conflict. In the ongoing Operation Rah-i-Rast, the captured militants are not regarded as traditional combatants whose status could revert to that of protected civilians on capture. Owing to their terrorist activities and their active support for the Taliban, they are categorised as terrorists by virtue of several UN Security Council resolutions, and there is an obligation to prosecute them.
So how does one proceed to prosecute them? One option is to try them under the Anti-Terrorism Act of 1997(ATA). The problem here would be that anti-terrorist laws may not be applicable to the entire province of NWFP. There are factors such as Pata/Fata distinctions. The added complication is that of the Nizam-i-Adl, which has its own territorial domain and that displaces ATA.
Chunks of territory where Operation Rah-i-Rast is being conducted are outside the jurisdiction of ATA. A militant from these areas must first be detained and then brought into the jurisdiction of ATA. This means that the captured militant must be removed from the ‘scene of crime’ and handed over to law-enforcement agencies for investigation.Here, another set of problems arises: the militant has not been captured by the police, the police had no opportunity to recover weapons or prepare the traditional recovery memo, nor has it inspected the scene of crime. The police are relying heavily on the ‘evidence’ given by the military men who captured him. This means that sooner or later, concerned military people will also need to testify both during the course of the investigation and in court.
With all this, when the prosecution eventually files a challan in court against the detained militant, there will be several weak points in the case that could easily be used by a good defence lawyer. The result would be devastating. The militant could escape conviction or receive a mild sentence or even be out on bail well before the trial concludes. This is the last thing that the government, the military or even locals in the conflict-hit area would like to witness.
The other option is to try these militants under the action in aid of civil power ‘regime’ which permits a different legal treatment of civilians and of captured insurgents. Generally, in various countries, federal laws regulating the conduct of the government during ‘action in aid of civil power’ are enacted. For example, in India there is a comprehensive legislation for ‘actions’ permissible in aid of civil power.
In Pakistan, a 1998 Action in Aid of Civil Power Ordinance has been rendered deficient in many respects due to haphazard amending of acts and ordinances. At this point, the ordinance authorises the establishment of military courts. In view of the Supreme Court’s direction these should be replaced with sessions courts. The preferred option is to replace the present ordinance with a more detailed and comprehensive enactment of the law, regulating and giving lawful authority to ‘action in aid of civil power’.
The only advantage of criminal proceedings under the ‘action in aid of civil power’ regime over the ATA is that the court actually ‘moves’ with the military operation itself. The courts can be set up anywhere, even in conflict zones or areas where Rah-i-Rast is being conducted or even where the militants are captured. These courts are closer to the scene of crime too. Under the aid of civil power regime, these
courts as such have no territorial jurisdiction restriction. However, as mentioned above, the sessions judge may be inducted as presiding officer by amending the law and’ secondly, the requirements of due process and judicial guarantees must be ensured during trial.
It may also be advisable to lay these complex legal questions along with various legal solutions before the Supreme Court and then seek its opinion under Article 186 of the constitution.
The writer is an advocate of the Supreme Court of Pakistan and president of the Research Society of International Law.