by Minahil Khan, Research Associate, RSIL Detention
Detention is the deprivation of the right to liberty and under Article 9 of the Constitution of Pakistan, no person can be deprived of his right to life and liberty save in accordance with law. An individual’s right to liberty can thus only be taken in accordance with the grounds and procedure established by the law. This article explores the rampant use of detention under the various instruments available under the law before the framing of a formal criminal charge. As the use of detention becomes more prevalent, it raises worrying questions of fundamental rights and the State’s overall strategy (or lack thereof) in dealing with counter-terrorism and counter-militancy challenges in Pakistan.
Pakistan today has a very high number of detainees; with the highest proportion of the total prison population in pre-trial/remand imprisonment. This can be directly attributed to the counter terrorism and counter militancy operations all over the country which have contributed to the exponential increase in the number of detainees.
In FATA and PATA alone, close to five thousand individuals have been preventively detained/interned pursuant to the military operations being conducted in aid of civil power under a notification pursuant to Article 245 of the Constitution. The Article 245 notification was issued by the Federal Government in 2011 to deploy the Armed Forces in FATA and PATA to address the broad spectrum of actions that threaten the state.
There are three main types of detention regimes in Pakistan. Firstly, remand detention as provided for under Section 167 the Code of Criminal Procedure (CrPC) and in the Anti Terrorism Act, 1997.  Secondly, preventive detention under the Article 10 framework. This is a permanent feature of the anti-terrorism regime in Pakistan and is operationalized through a wide variety of laws discussed below and finally, preventive detention/internment under the Article 245 framework in FATA and PATA which operates through the Actions (in Aid of Civil Power) Regulations, 2011.
Under Article 10 of the Constitution, each person detained in custody is to be produced before a Magistrate within twenty-four hours. Under the CrPC, an accused can be remanded to custody by the Magistrate where it is believed that the investigation cannot be completed in twenty-four hours and where there are grounds for believing that the accusation or information is well-founded.  The maximum period for remand under the CrPC is fourteen days. However, for terrorism specific cases, the maximum period of remand can extend to ninety days. The disparity in the period of detention under the CrPC and the ATA is one of the many contributory factors of the high number of superfluous cases in the anti-terrorism courts of Pakistan, since the ATA gives more time to the police to complete investigation while detaining the accused.
The second type of detention prevalent in Pakistan, which is contributing to the exponential increase in prison population is preventive detention. Preventive detention is the deprivation of liberty without any specific criminal charges. It aims to prevent serious future harm based on a person’s activity rather than the express commission of a crime and is primarily an executive measure. It is considered an exceptional measure of control exercised by the State for security reasons or public order provided that the requisite criteria has been met.  The general framework for preventive detention is found under Article 10 of the Constitution which allows for exceptional laws to deal with the detention of persons acting in a manner prejudicial to the integrity, security or defence of Pakistan.
Although preventive detention is envisaged as an exceptional measure by our Constitutional scheme, it is presently operationalized by four separate laws; the Anti-Terrorism Act, 1997 (ATA); Maintenance of Public Order Ordinance, 1960 (MPOO); Security of Pakistan Act, 1952; and the Foreigners Act, 1946.
The most widely used instruments for detention are the ATA and the MPOO. While the premise for these legislations is to prevent offences relating to national security, sectarianism and the maintenance of public order, their use has become wide and rampant. These legislative instruments do not give a carte blanche to the government to use it to curtail the liberty of people however there have been instances where petty criminals and even timber smugglers have been detained under the MPOO.  This goes to show that, contrary to the Constitutional scheme, the current use of the preventive detention mechanism in Pakistan is far from restrictive. Perhaps part of the problem can be traced to the high rate of acquittal in most criminal cases due to failures in the prosecutorial system. To detain individuals for investigation without criminal charges is a sure-fire way to keep them off the streets. This, however, is a temporary solution to a much bigger problem. In many cases, the families of the detainees file habeas corpus petitions in the High Court upon which they may be released from preventive detention. This release can have two outcomes; if enough evidence has been gathered during the time of detention the person is then arrested and a formal case is filed or where there is lack of evidence the person is often falsely charged of a case and then remanded to police custody to ensure that he is not released back to the streets. These stopgap (and often unlawful) arrangements further increase the chances of an eventual acquittal.
In extreme cases, suspects have been reported to be transferred to internment centres in FATA and PATA for having committed acts having a ‘nexus’ with the actions prohibited under the AACPR 2011 as witnessed in the Adyalla 11 case. Internment under this framework is to continue till such time as the military action in FATA and PATA is under-way, thereby creating a system for an individual’s indefinite detention where subsequent acquittal seems probable. What makes this more problematic is that the fundamental fredoms do not apply in the internment centres in FATA and PATA. Therefore, detainees do not have the privilege to invoke Article 10 of the Constitution which gives them the right to file representations against the order of detention, to be informed of their grounds of detention and to have Review Boards constituted after three months of such detention.
Even where detainees are not transferred to the tribal areas, the sheer volume of detention cases makes it very difficult to have Review Boards constituted for every single instance of detention. The constitution of these Boards is a fundamental right of citizens and because of its practical constraints this right becomes unavailable to most detainees.
Even under the ordinary criminal system, accused individuals are remanded (detained in police custody) for periods that go far beyond the fourteen day period mandated under the law. Magistrates authorize the detention of individuals without applying their judicious mind and often remand a person to custody for periods that exceed the mandated days. This is done in sheer violation of their duty under S. 167 of the CrPC.
Preventive detention is generally regarded as an acceptable and lawful mechanism for dealing with threats to public safety and national security. It is recognized and given due protection by our Constitution. Used correctly, it can prove to be an invaluable tool to counter the particularly unique challenges being faced by Pakistan in its fight against terrorism and militancy. Unfortunately, the detention regime in Pakistan today is being used as a bandage for the failure of our investigative, prosecutorial and judicial processes. This indiscriminate, arbitrary and often careless use of the detention regime undermines its effectiveness and runs contrary to its purpose. More importantly, it violates the fundamental rights of our citizens and weakens the legitimacy of our counter-terrorism and counter-militancy responses.
 World Prison Brief, Institute of Criminal Policy Research, available at http://www.prisonstudies.org/news/close-three-million-people-pre-trial-detention-worldwide-new-report-shows  The total number of these pre-trial/remand prisoners includes approximately 50,000 people  Baloch, Y., Pakistan’s Internment Centres, Bertha Foundation, 27.02.2017 available at < http://berthafoundation.org/pakistans-own-guantanamos-the-internment-centers> Article 245(1), Constitution of Pakistan: The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.  Sheikh, M and Moghees Khan, Preventive Detention: A Guide to Pakistan’s Operations, Conflict Law Centre, Research Society of International Law, Pakistan, November 2016.  Anti Terrorism Act, 1997: No. F. 9(39)/97-Legis, dated 20th August. 1997 (ATA)  Actions (in Aid of Civil Power) Regulations, 2011 S.R.O 11(6)P/L/2011 (AACPR)  S. 167, Code of Criminal Procedure,  S. 21E, ATA  Commentary on the Protection of the Civil Population, Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts, 2063 (1958)  Jelana Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence, 87 ICRC REV. 375 (2005)  Maintenance of Public Order Ordinance, 1960: Ordinance No. XXXI dated 2nd December 1960 (referred to as MPOO)  The Security of Pakistan Act, 1952: Act No. XXXV of 1952  Foreigners Act, 1946 (XXXI of 1946)  Nazakat v Deputy Commission, 2017 PCrLJ 709  S. 9(3), AACPR 2011 See Rohaifa v Federation of Pakistan, PLD 2014 SC 174, more commonly known as the Adyalla 11 case  Section 167 of the CrPC deals with cases where the investigation cannot be completed within twenty-four hours and the person has to be produced before a Magistrate. Magistrates can then authorize further detention of the accused for a period of fourteen days.