Published in hrw.org ::
Pakistan’s government should rescind the suspension of fundamental rights and the grant of military authority for law enforcement in Islamabad, Human Rights Watch said today. Powers given to the military risk misuse in the face of ongoing large-scale political protests.
“Pakistan faces very real threats of terrorism, but giving unbridled powers to the army and suspending fundamental rights is the wrong response,” said Brad Adams, Asia director. “Suspending rights and judicial oversight is an overbroad and disproportionate measure that should be rescinded.”
On August 1, 2014, the government invoked article 245 of the constitution, permitting the military to carry out law enforcement in Islamabad. Under article 245, the government also suspended fundamental rights, including the courts’ jurisdiction to enforce freedoms of expression, assembly and association, and habeas corpus, allowing detention without charge or remedy. Invoking article 245 also gives the armed forces excessive powers under the Anti-Terrorism Act of 1997. Soldiers are permitted to shoot to kill after giving a warning, but are not bound by standard rules allowing them to act only in self-defense or to protect the lives or property of others. They can conduct arrests and searches of property without a warrant.
The minister of interior, Nisar Ali Khan, said article 245 was invoked because of security and counterinsurgency concerns after the military undertook an offensive against Taliban forces in North Waziristan, but it is now in force at a time when opposition politicians, including Imran Khan and Dr. Tahir-ul-Qadri, have announced they would lead anti-government marches and protests in Islamabad. Tens of thousands of protesters are expected to participate in marches and demonstrations in the coming days. Recent calls by opposition leaders for workers and activists to disregard the law and use force against the authorities has raised concerns about the peacefulness of the protests. In response, the government has filed criminal cases against members of the opposition and placed protesters in administrative detention to stop protests from taking place.
“Opposition leaders need to take steps to ensure that their protests are peaceful,” Adams said. “At the same time, the government and army need to ensure that article 245 is not used to suppress peaceful protests and other basic rights. Those arrested who have not been charged with a credible offense should be released.”
The International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, permits some restrictions on certain rights during an officially proclaimed public emergency that “threatens the life of the nation.” According to the United Nations Human Rights Committee, the international body of experts that monitors compliance with the treaty, any derogation of rights during a public emergency must be of an exceptional and temporary nature, and must be “limited to the extent strictly required by the exigencies of the situation.”
Under international law, countries may not invoke a public emergency to permit arbitrary deprivations of liberty or unacknowledged detentions, nor may they deviate from fundamental principles of fair trial, including the presumption of innocence. People held as administrative detainees under a lawful state of emergency should, at a minimum, have the right to be brought before a judicial authority promptly after arrest, be informed of the reasons for detention, and have immediate access to legal counsel and family. They also should be allowed to challenge the lawfulness of their detention in a fair hearing, and to seek a remedy for mistreatment and arbitrary detention.
“The government has a responsibility to protect the population from terrorist attacks while upholding the fundamental rights and liberties of the citizens,” Adams said. “But giving the military broad powers to carry out law enforcement functions is a grave cause for concern in a country where the military has a long history of interfering in civilian government and violating basic rights.”