3.3 Preventive Detention

Preventive Detention

 

• International Human Rights Safeguards and Standards

 

It is essential to draw a distinction between pre-trial and preventive detention. Preventive detention is that which is ordered by the Executive and all powers of decision making are held solely with the executive authority imposing the detention. Preventive detention is broader than any other form of deprivation of liberty as it is not imposed merely due to a violation of criminal law but is imposed because the detained person’s actions have the effect of threatening national security and public order.^[1] The International Commission of Jurists defines administrative or preventive detention as,

 

“The deprivation of a person’s liberty, whether by order of the Head of State or any executive authority, civil or military for the purposes of safeguarding national security or public order or other similar purposes, without that person being charged or brought to trial.”^[2]

 

International instruments such as the ICCPR and UDHR lay the basis for the protection of human rights within deprivation of liberty of an individual as well. Article 9 of the ICCPR deals with the right to liberty and security of person and Article 9(1) provides protections in cases of preventive detention as well which means that any individual must not be subjected to arbitrary detention of an administrative nature. Other provisions under Article 9 may pertain to specific violations of criminal law however, for the purposes of Article 9(4) any individual subjected to preventive detention is entitled to challenge the legality of the detention.

 

Furthermore, Article 9 of the UDHR is significant in cases of arbitrary preventive detention which means that any detention of a preventive or arbitrary nature must be justified on the basis of a threat to national security or public order.

 

Thus, international law does not expressly prohibit preventive detention however, it is very important to note that it establishes clear restrictions as to the conditions for imposing such detention and states that administrative or prevention detention must apply in accordance with the law and must not be arbitrary in nature. The Human Rights Committee has stated that detention of a person due to unsound mind was allowed as it was not unlawful or arbitrary.^[3] Furthermore, the Human Rights Committee has taken the view that detention of asylum seekers may not be a violation of human rights law as long as “every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed.”^[4]

 

The working group (WG) of the HRC in its review of Pakistan has underlined the need for availability of hebeaus for the persons held under preventive detention.^[5] In its review the WG has maintained that depravity from liberty should be in conformity with international standards. The WG has also stressed on the need of the appropriate training for the law enforcement and members of the intelligence agencies in the field of human rights.

 

Thus, international standards on preventive detention dictate that such detention must not be arbitrary, must be justified under the law and must be reviewed periodically to ensure the legality of such detention.^[6] This has been further laid down by General Comment No. 8 where the Human Rights Committee states,

 

“if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5). And if, in addition, criminal charges are brought in such cases, the full protection of article 9(2) and (3), as well as article 14, must also be granted.”^[7]

 

All other human rights standards which has been discussed in the preceding sections also apply to all cases of preventive detention.^[8] (See Sections 3.1.1 and 3.2.1)

The Human Rights Committee concluded its consideration in July 2018 of the initial report of Pakistan on its implementation of the provisions of the International Covenant on Civil and Political Rights. The committee noted that persons in pre-trial detention comprised 69 per cent of the entire prison population in 2015, and individuals remained in pre-trial detention for periods longer than the sentence itself.  Security agencies were allowed to detain any person suspected of terrorism for a year.  There was no independent mechanism to monitor the release, and judges had discretion in granting compensation.^[9]

 

• Constitutional Safeguards

 

Article 10 of the Constitution provides for protections against arrest and detention however, the Article expressly mentions laws which have been established for preventive detention fall outside the scope of Article 10(1) and (2). However, Article 10(4) deals with preventive detention and states that such laws may only be established to protect the integrity, security or defence of the State and to protect public order or the external affairs of the State. However, this Article expressly states that such detention may not exceed a period of three months unless a review board decides after allowing the detainee to present their defence, has sufficient reason to believe that such detention may be extended.

 

The appropriate review board under Federal Law is deemed to be a board appointed by the Chief Justice of Pakistan which must include a Chairman and two other persons each of whom is or has been a Judge of the Supreme Court or High Court. Under Provincial Law however, the review board is a board appointed by the Chief Justice of the relevant High Court which must include a Chairman and two other persons, who is or has been a Judge of the Supreme or High Court.

 

Article 10(5) of the Constitution explains that when a person is subjected to preventive detention, the requisite authority making the order should within 15 days of such detention, communicate the grounds of detention to the person and must provide him the right to challenge the order. However, such authority has the discretion to limit the information that it discloses to protect public interest in the circumstances.

 

A person arrested under the law relating to preventive detention under Article 10 is protected by the following principles:

 

1. That no person detained under any such law can be detained for a period exceeding three months, unless he is given an opportunity to appear before the Review Board in person, and the State obtains the opinion of the said Board that there is sufficient cause for such detention before the expiry of that period;
2. If the detention is continued after the said period of three months, the State will have to obtain opinion of Review Board, before the expiry of each period of three months, that there is, in its opinion, sufficient cause for such detention;
3. That the authority ordering the detention shall, within fifteen days from such detention, communicate to the detenu the grounds for his detention, and shall afford him the earliest opportunity of making a representation against the orders of his detention; however, the authority making order for the detention may not disclose the grounds or any particular fact if they consider it to be against public interest;
4. That no person shall be detained for more than a total period of eight months in case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case within a period of twenty-four months commencing on the day of the first detention.
5. The detainee is also entitled to be heard in person or through his counsel by the Review Board and he may also consult a legal practitioner (Article 10(5));
6. Similarly, the composition of the Review Board is provided by the Constitution itself. According to Article 10(4) members of the Review Board are appointed by the Chief Justice of Pakistan and the Board consists of a Chairman and two other members, each of whom is or has been a Judge of the Supreme Court or a High Court;
7. Communicating the grounds to the detainee and review by the Board are two mandatory provisions. Their denial will amount to violation of the law and will render the detention illegal.

 

• Domestic Law and Jurisprudence

 

1. Domestic Law

 

There are various domestic laws that deal with preventive detention in Pakistan.

 

• Conditions for Preventive Detention

 

Anti-Terrorism Act 1997

 

This Act was introduced to provide legal solutions to acts of terrorism, sectarian violence and other heinous offences. Sec. 11EEE of the Act was added in 2002 and is a by-product of the ^[10]post-September 11, 2001 anti-terrorism regime. The section deals with preventive detention and states that the Government may detain a person for an initial period of three months and may extend the time of detention, subject to review, for a term not more than twelve months.  Furthermore, it expressly states that such detention is subject to the provisions of Article 10 of the Constitution. Under this section, an order is to be issued by the Government directing detention, specifying custody and the period of detention. The UN Human Rights committee in its annual review has raised a concern on the dominance of Anti-Terrorism Act over all other laws in Pakistan especially with regards to arbitrary detention and jurisdiction over juvenile offenses. The committee has recommended an overhaul of the act so as to bring it in line with the article 14 and 15 of the ICCPR.^[11] In its Concluding Observations on the Initial Report of Pakistan, the HRC notes its concern with regards to the broad definition of terrorism within the Act, the Acts supremacy over other laws including the Juvenile Justice System Act which raises serious concerns with regards to the rights of children in the criminal justice system. The Committee notes that the Anti-Terrorism act allows courts to try juveniles, detain a person for up to a year and admits confessions made in police custody in clear violation of international law on the matter. The Committee recommended that the Anti-Terrorism Act be reviewed in light of international standards, the definition of terrorism be amended and aligned to international standards and further recommended repealing Section 21-H of the Act with regards to confessions in police custody. The Committee advises Pakistan to establish procedural safeguards within the Act and to bring court proceedings as initiated under the Act in line with Articles 14 and 15 of the Covenant to ensure fair trials and requires the State to take steps to avoid delays in resolving cases.

 

Maintenance of Public Order Ordinance 1960

 

Sec. 3 of the Ordinance allows the Government to arrest and detain any person acting in a manner so as to undermine public safety and the maintenance of public order for a period prescribed within the order for detention. Sub-Section 1 clarifies that the Government has the power to extend the period of detention however this must not exceed six months at a time. This power of extension is subject to review by the Board as Sec. 3(5) states that any person cannot be detained for a period exceeding three months unless the Board has reviewed the case and found sufficient case for extension.

 

Sec. 6 further states that if a person is detained then within fifteen days, the grounds for such detention must be communicated to him. However, the authority ordering the detention reserves the power to restrict the disclosure of information if such disclosure is contrary to public interest.^[12] Moreover, the authority must present all relevant documents pertaining to the case to the Board if such disclosure is not contrary to public interest. Sec. 11, on the other hand, clarifies that any time limitations as to detention within the Ordinance will not apply to enemy aliens. ‘Enemy aliens’ refer to nationals of an enemy state i.e. nationals of a state you are at war with. International law permits that in situations of war, the nationals of an enemy state can be detained or interned for the duration of the conflict.[13] Since the 18^th Amendment each province has also applied the Maintenance of Public Order Ordinance in their territories to deal with preventive detention. The ordinance has been extensively used both by the military and democratic government alike and has been under repeated judicial scrutiny for being misused by the executive.^[14]

 

Security of Pakistan Act 1952

 

The Security of Pakistan Act 1952 remains in force as was declared in Amatul Jalil Khawaja v. Federation of Pakistan^[15] where the Court stated that if the Act had been repealed by subsequent laws, the Government could have confirmed when all federal laws were reviewed in 1981. Sec. 3 of the Act follows the same contours as the law set out in Article 10 of the Constitution of Pakistan and states that a person may be detained if they act in a manner so as to undermine the defence or external affairs or the security of the State.^[16] It further states that any person conducting activities to adversely affect public order may be detained for eight months and for twelve months for any other activity.^[17] However, these restraints do not apply to a person who qualifies as an enemy alien. Moreover, the Board of Review is entitled to decide the conditions and place of detention.^[18]

 

Sec. 3-C widens the ambit of power granted to the Government to enforce preventive detention and states that an order for detention will not be invalid merely because the detained person is outside the territorial jurisdiction of the Government which means that detention of aliens has also been legalized under the Act.

 

Sec. 6 of the Act lays down the rules in relation to the communication of the order of detention and states that the authority making the order must communicate the grounds of such order to the detained person within fifteen days^[19] and must enable him to represent himself as against the order. However, the discretion to withhold information on the basis of preservation of public interest has been preserved by the Act as well.^[20] Following the guidance provided in Article 10, the Act in Sec. 6-A states that a person may not be detained under an order for more than three months unless the Board of Review opines that there is sufficient cause for the extension of such detention. It adds in Sec. 6-A(4) that the proceedings of the Board shall be in private. Certain sections of the Act do not conform with the international standards laid through covenants and general principles. For instance, Section 9 of the ICCPR lays out conditions that must be met before detaining an individual and specifies that all deprivations of liberty must be conducted in accordance with the procedures established by the law. Article 9(4) provides individuals with the right to challenge the legality of the detention, ensuring that arbitrary arrest and detention are prohibited. In General Comment No. 8 the HRC notes that such detention should be as short as possible and defines ‘reasonable time’ within Article 9(3) as no longer than 48 hours. Furthermore, Article 11 of the UDHR states that every individual has the right to be presumed innocent until proven guilty, and no individual must be held criminally responsible under any law which applies retrospectively. Additional standards have also been established under international law that include but are not limited to ‘the requirement of detained persons to be informed of the charges against them, to be provided adequate time to challenge their deprivation of liberty, the provision of legal aid and the ability to bring proceedings in Court. [21] and the provision of alternatives to pre-trial detention and the requirement that detention should be used as a last resort only when non-custodial measures are not appropriate.[22]

The Act has been contested as several subsequent laws have been promulgated, however, courts have maintained that as the law still exists in the statute books, therefore, it’s applicable.^[23] Nonetheless, it is the duty of the judicial organ of the State to reconcile domestic law with Pakistan’s international obligations which must be reflected in the precedent set by Courts in the State.

 

Foreigners Act 1946

 

Sec. 3 of the Act lays down the rules to make an order for detention and follows the same principles as set out in Article 10 of the Constitution. Sec. 3(2)(g) states that within a period of twenty-four months from the commencement of the first day of detention no person can be detained for more than a total of eight months if they have acted in a manner so as to undermine public order, and for not more than twelve months in any other case. Sec. 4 on the other hand, states that any foreigner detained under this Act is subject to the conditions established by the Federal Government as to the place and manner in which the person is to be detained.

 

Juvenile Justice System Act 2018

 

Sec. 5(2) of the Act established a prohibition on the preventive detention of a minor.

 

• Treatment of Detainees

 

Detainees can only be admitted subject to a lawful order of detention.^[24] Once admitted they are questioned by the Assistant Superintendent to confirm and verify their name and other personal details.^[25] Prisoners are thoroughly checked at arrival under the supervision of the Assistant Superintendent. All weapons and prohibited items are removed. Personal items, cash, clothing etc. are removed and logged for storage.^[26] There is an admissions register that detainees have to fill.^[27] A full personal description, including thumb impressions have to be recorded in this register.^[28]

 

Each detainee on admission must be thoroughly examined by the Medical Officer for unexplained injuries, wounds or abrasions. If injuries are found, they must be recorded into the admissions register and the injury register.^[29] If those who had custody of the detainee prior to arrival at the detention facility did not log the injuries, a report must be forwarded to the relevant personnel, including the presiding Superintendent of Police.^[30] On completion of the entries in the admission register, the Deputy Superintendent is to check each entry in order to be satisfied that the entries correspond with the warrants and are correct in every respect.^[31] The Superintendent is to be satisfied that the prisoner’s description, identification, marks and thumb impression/signature have been duly recorded in the admission register.^[32]

 

Furthermore, Detainees are to be kept in association wards where they shall be allowed to associate freely with one another. However, a particular detainee or a class of detainees may be confined separately by the Superintendent on the grounds of health or other sufficient reason.^[33] All male and female detainees are to be kept separately within detention facilities.^[34]

 

The Inspector-General of the facility is required to take all steps necessary to ensure that every detainee is supplied with a diet that maintains good health.^[35] Along with the Deputy Superintendent and Medical Officer, the Superintendent must be satisfied as to the following:

 

• Clean drinking water is provided for consumption at all times
• All food provided is of a quality fit for consumption
• All cooked food is prepared properly and fit for consumption
• All food raw and cooked is examined fully before consumption
• All stored foods are inspected frequently and any that do not meet inspection disposed of immediately
• Places and tools for consumption of food are suitable and available for use.^[36]

 

The Senior Medical Officer is required to examine the prepared food daily.^[37] In addition to this, detainees may either wear their own clothing or may be provided a uniform as per the guidelines.^[38] A detainee who is unable to provide himself with sufficient clothing and bedding through his own sources will be supplied by the Superintendent with clothing and bedding on the same scale as is prescribed for ordinary prisoners.^[39] Furthermore, detainees are permitted to send and receive correspondence and have personal visitations in accordance with the laws and procedures established. Personal visitations are referred to as interviews under domestic law.^[40]

 

Torture and infliction of violence upon persons in custody has also been criminalised under the Police Order 2002,^[41] however the 2002 Order is only applicable in Punjab as Khyber Pakhtunkhwa in 2017 enacted the Khyber Pakhtunkhwa Police Act which provides that whoever, being a police officer, inflicts torture or violence to any person in his custody shall on conviction be punished and sentenced up to five years imprisonment.^[42] Furthermore, the Pakistan Prison Rules 1978 also prohibit the use of violence and abusive language towards a prisoner.^[43]

 

2. Jurisprudence

 

When dealing with preventive detention, Courts in Pakistan have emphasised on the need to ensure compliance with the principle of legality and have protected the right of the accused to challenge such detention. In Allah Nawaz v. Government of Khyber Pakhtunkhwa^[44] the Court stated that a Constitutional petition against an order for preventive detention was maintainable as no alternative adequate remedies were available to the petitioner which could debar him from filing a constitutional petition before the High Court.

 

A similar dictum was reached in Rafaqat Ali v. Deputy Commissioner^[45] where the Court found that detention orders had been made merely on the basis of police reports, and there was insubstantial evidence for such detention to be authorized due to which constitutional petitions were allowed and the detained persons were set at liberty. Furthermore, in Muhammad Yaqoob Butt v. Deputy Commissioner Hafizabad^[46] the Court stated that a person’s mere involvement in one criminal case could not serve as an adequate basis for an order of preventive detention, and the Court had to assess the possibility of misuse or arbitrary use of such power by executive authorities. In Raheel v. State^[47] as well, the Court explained that an order for detention had to be made on the basis of strong evidence which is of such a nature so as to persuade and satisfy any ordinary prudent person to justify the order of preventive detention. Where an order had been issues on the basis of a letter only, the detention was found to be violative of Article 9 of the Constitution.

 

 

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^[1] United Nations Economic and Social Council, Commission on Human Rights, Sub- Commission on Prevention of Discrimination and Protection of Minorities, ‘Report on the Practice of Administrative Detention, submitted by Mr Louis Joinet’, E/CN.4/Sub.2/1989/27 (6 July 1989), 7.

^[2] International Commission of Jurists, States of Emergency: Their Impact on Human Rights (1983), 394.

^[3] Communication No. 754/1997, A. v. New Zealand (Views adopted on 15 July 1999), in UN doc. GAOR, A/54/40 (vol. II), p. 254, para. 7.2.

^[4] Communication No. 560/1993, A. v. Australia (Views adopted on 3 April 1997), in UN doc. GAOR, A/52/40 (vol. II), p. 143, paras. 9.3 and 9.4.

^[5] HRC ‘Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Pakistan’ A/HRC/22/45/Add.2

^[6] Ibid Para 9.4

^[7] HRC, ‘CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons) 30 June 1982 UN Doc HRI/GEN/1/Rev.9 (Vol. I)

^[8] OHCHR and IBA, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ Professional Training Series No. 9, 2003

^[9] https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21868&LangID=E

^[10] UNHRC  ‘Concluding Observation on the initial report of Pakistan’ 23 August 2017, CCPR/C/PK/1

^[11] Ibd para 21

^[12] Sec. 3(6) Maintenance of Public Order Ordinance 1960 (Ordinance XXXI of 1960)

[13] See Articles 41 – 44 of the Convention relative to the Treatment of Prisoners of War 1949 (3rd Geneva Convention).

^[14] PHC warns DCs <https://www.thenews.com.pk/print/96784-PHC-warns-DCs-against-misusing-Section-3-of-MPO> accessed 25 November 2020.

^[15] PLD 2003 Lahore 310

^[16] Sec. 3(1) Security of Pakistan Act 1952 (Act No. XXXV of 1952)

^[17] Sec 3(1)(b) Security of Pakistan Act 1952 (Act No. XXXV of 1952)

^[18] Sec. 3(4) Security of Pakistan Act 1952 (Act No. XXXV of 1952)

^[19] Sec. 6(2) Security of Pakistan Act 1952 (Act No. XXXV of 1952)

^[20] Sec. 6(1) Security of Pakistan Act 1952 (Act No. XXXV of 1952)

[21] UN Basic Principles and Guidelines on Remedies and Procedures on the right of anyone deprived of their liberty to bring proceedings before a Court.

[22] UN Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules)

^[23] ‘LHC Told 1952 Security Act Still in Force’ (DAWN.COM, 15 February 2003)   <http://beta.dawn.com/news/82189/lhc-told-1952-security-act-still-in-force> accessed 30 November 2020.

^[24] Rule 14 Prison Rules 1978

^[25] Rule 15 Prison Rules 1978

^[26] Rule 16 Prison Rules 1978

^[27] Rule 17 Prison Rules 1978

^[28] Rule 22 Prison Rules 1978

^[29] Rule 19 Prison Rules 1978

^[30] Rule 20 Prison Rules 1978

^[31] Rule 25 Prison Rules 1978

^[32] Rule 26 Prison Rules 1978

^[33] Rule 3 West Pakistan Public Order Detenu Rules

^[34] Rule 231(i) Prison Rules 1978

^[35] Rule 503 Prison Rules 1978

^[36] Rule 504 Prison Rules 1978

^[37] Rule 505 Prison Rules 1978

^[38] Rule 6 West Pakistan Detenu Rules and Chapter XXI Prison Rules

^[39] Rule 6 West Pakistan Detenu Rules

^[40] Chapter XXII Prison Rules and R. 11-22 West Pakistan Public Order Detenu Rules

^[41] Sec. 156(C) and (D) Police Order 2002

^[42] Sec. 119(D) Khyber Pakhtunkhwa Police Act 2017

^[43] Rule 1069(ii) Prison Rules 1978

^[44] 2019 MLD  Peshawar High Court 1016

^[45] 2019 P.Cr.L.J.N Lahore High Court 154

^[46] 2018 P.Cr.L.J Lahore High Court 31

^[47] 2017 MLD Peshawar High Court 1548