Modern states use their coercive authority through criminal law, which derives its legality and legitimacy through constitutional law. This linkage between a state’s penal and coercive power and its criminal law is not only found in Western democracies, but is also a part of statecraft in countries like China and Russia, which apparently do not follow the rule of law paradigm yet have their own set of criminal laws in place. In this context, it must be noted that the state (and not the government) of Pakistan can and should link its national security discourse with criminal law to equip itself with lawful powers that sustain the constitutional tests in judicial reviews, and also to ensure that certainty and severity of state actions and sanctions are applied with full force. This is, however, not so straightforward.
In practice, the binary of federal and provincial law is invoked. Most often than not, criminal law is deemed to be the domain of provinces. This is done by masking and labelling criminal law as ‘law and order’, a term alien to the Constitution of Pakistan. ‘Law and order’ is not a legal term and is, at best, an administrative term, which should not be made the basis of dividing constitutional roles between the federation and the provinces. The more specialized and constitutional term of ‘criminal law’ serves national security better due to the dynamic nature of the security threats that express themselves in non-traditional and less territorial terms. Owing to the latest national security concerns, the centrality and primacy of criminal law in meeting national security requirements cannot be discounted. The following are reasons and areas of concern that must be considered while imagining the role of criminal law in national security:
- The criminal law, criminal procedure and evidence are ‘concurrent subjects’ under the existing constitutional arrangements. Their federalist characteristic is more pronounced owing to Article 143 of the Constitution of Pakistan that incorporates ‘prevalence’ of federal criminal law over provincial criminal law regardless of whether the former is enacted ‘before’ or ‘after’ the provincial criminal law.
- The anti-terrorism law (i.e., the Anti-Terrorism Act, 1997) is a criminal law in essence. The ATA is a federal criminal law that enables federal and provincial governments to implement sanctions regimes introduced by international and national inter-government and intra-government organizations. The law allows the proscription of persons, organizations, and their associates. Moreover, it also defines terrorism and provides enabling provisions to constitute joint interrogation and joint investigation teams that foresee a coopted mechanism in which civil and military law enforcement agencies work in tandem. The present edifice of the set of laws enacted to meet the requirements of Financial Action Task Force (FATF) was also built mainly in and around this federal criminal law.
- International human rights law and the resulting international legal obligations of Pakistan can be enforced through federal criminal law. It may be observed that the Juvenile Justice System Act 2018 was enacted to fulfill the international legal obligations of Pakistan in connection with its obligations to implement the Convention on the Rights of Child (CRC). More of such examples are there on the statute books and must be used in full to oversee comprehensive implementation of the international legal obligations.
- The anti-corruption law (the National Accountability Ordinance, 1999) is a federal criminal law. Precisely for this reason, it may be observed that Sections 3 and 19 of NAB Ordinance, 1999 have an overriding effect on all other laws. The National Accountability Ordinance 1999 Sindh Repeal Act, 2017 was enacted on 9th August 2017 but could not be implemented due to the bar contained in Article 143 of the Constitution of Pakistan. The provincial anti-corruption agencies have a similar mandate of checking corruption but have dissimilar subjects’ i.e. provincial employees.
- The Anti-Money Laundering Act, 2010, besides being an administrative law, is a federal criminal law, as it criminalizes money laundering and provides lists of predicate offences, over which, federal organizations have the jurisdiction to investigate, prosecute and initiate requests for international legal cooperation in criminal matters. The spate of laws like the Mutual Legal Assistance (Criminal Matters) Act, 2020, the United Nations Security Council (Amendment) Act, 2020, the National Counter Terrorism Authority (Amendment) Act, 2020 and amendments in anti-terrorism law, enacted in 2020, were applicable to whole of Pakistan. The national application of these laws classifies them as federal criminal laws.
- Criminal activities in cyberspace are also checked by federal criminal laws, i.e. Prevention of Electronic Crimes Act, 2016 and the Pakistan Telecommunication (Reorganization) Act, 1996. The two sets of laws define cybercrimes and provide for the criminal procedure to be undertaken in relation to such crimes. Both laws are federal laws, and provide for the prevention, regulation, and detection of cybercrimes.
- The offences stated in commercial and regulatory laws read with the Federal Investigation Agency Act, 1974 provide for very important federal criminal laws. The Companies Act, 2017, the Limited Liability Partnership Act, 2017, the Benami Transactions (Prohibition) Act, 2017, the Securities Act, 2015, and all the laws relating to corporate and business structures, provide for specific offences that can be investigated, prosecuted and tried only by federally constituted organizations and courts. The serious corporate offences having national and international linkages can only be tried by federal organizations.
- Laws specific to armed forces such as the Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, the Official Secrets Act, 1923 and Pakistan Nuclear Regulatory Authority Ordinance, 2001 contain specific offences that are federal crimes and are species of federal criminal law.
- According to the latest judgment of the Supreme Court of Pakistan, policing and police laws are subsets of criminal law and procedure. The concurrent legislative value of criminal law and its subsets have the prowess and potential to strengthen the state of Pakistan, which must express its coercive and penal power through lawful means to make them sustainable, fair and loaded with the value system of the rule of law.
The aforementioned points are indicative and not exhaustive. The emerging global security landscape is largely non-military, and this latest trend of blending the international with national, and hiding the traditional agendas behind non-traditional agendas impress upon Pakistan’s policymakers to acknowledge the primacy of criminal law in protecting national security interests. From dealing with Kalbushan Jadhev’s case to highlighting violations of international human rights laws in Indian Occupied Kashmir, ‘lawfare’ is at work, and investing in it is an essential point of departure for future warfare.