Legal and Ethical Implications of Preventive Detention in Pakistan: The Case for a More Effective Criminal Justice System

Abstract

The United Nations’s Universal Declaration of Human Rights provides for the right to life, liberty, security, fair trial, equality before law, as well as security against arbitrary arrest and detention. UN General Assembly approved International Covenant on Civil and Political Rights (ICCPR) in the year of 1966. These rights including protection against capricious arrest and incarceration are ensured by most of democratic world. However, some states have made provisions to take away right of liberty and free movement on administrative grounds called preemptive detention. The purpose of preventative detention is stated to stop people even prior to doing of something wrong even prior to the prosecution is done and an offence is proved. Justification for such detention is based on mere suspicion or apprehension of danger without and not based on any proof or evidence. In Pakistan preventative detention is allowed under article 10 of the constitution of Pakistan, under this clause legislature is empowered to make any law authorizing preventive detention. Under the mandate of this article legislature enacted certain laws providing for preventive detention, including Anti-Terrorism Act 1997, West Pakistan Maintenance of Public Order 1960 and Protection of Pakistan Act 2014. Article 4 of the ICCPR provides only one exception, when States can detract from their duties under the Covenant. The States can do so only in times when state of emergency is declared officially under grave necessity which endanger the life of the nation and its existence. But article 10 of the Constitution of Pakistan makes provision for preemptive incarceration during peace times also. Providing for preemptive detention under article 10 of the Constitution of Pakistan in peace times without officially proclaiming state of emergency in the country is violation of article 4 and 9 of the Covenant. Preventive detention law in Pakistan is in conflict with Human Rights laid down by the ICCPR. Existing criminal laws either covers or may cover all eventualities of misfeasance, nonfeasance and malfeasance, so a person may be dealt through criminal trial for his criminal act or even the act in the making at conspiracy level with the help of evidence. Preventive detention does not need to occupy necessary place in a system where effective, vibrant, robust and proactive criminal justice system is in place.