Laws and Regulations
The British colonial constitutional provisions and penal codes gave the authorities ample scope for overriding regular legal procedures in the case of persons suspected of political agitation or threats to the public order. These provisions and codes were perpetuated and strengthened in Pakistan. The Security of Pakistan Act empowers authorities to move against any person "acting in a manner prejudicial to the defence, external affairs and security of Pakistan or the maintenance of public order." Under the act, persons may be detained, their business activities, employment, or movements may be restricted, and they may be required to report regularly to a magistrate.
Article 144 of the Code of Criminal Procedure allows the government to act preventively if it perceives the danger of public disorder. A magistrate may prohibit meetings of five or more persons, forbid the carrying of firearms, and impose "preventive detention" on anybody thought likely to disturb public order. Although a detainee is entitled to be informed of the reason for his detention and to a fair review of the case, these restrictions are in practice easy to circumvent, and the constitution specifically denies such detainees procedural guarantees. The government, especially in periods of martial law, has used Section 144 frequently when feeling its position could be threatened by demonstrations and public opposition to its policies; Section 144's provisions have also been used, however, to contain disorder that is not political.
In 1991 Pakistan adopted the Terrorist Affected Areas (Special Courts) Ordinance, which extends the authority of Speedy Trial Courts and gives the police expanded powers to use weapons. The Maintenance of Public Order Act allows detention without trial for three months, extendable to twelve months in some cases. This act has been used to silence political opponents of the government.
The Federally Administered Tribal Areas (FATA) have a separate legal system, the Frontier Crimes Regulation (FCR), which recognizes the doctrine of collective responsibility. Authorities are empowered to detain the fellow members of a fugitive's tribe, or to blockade the fugitive's village, pending his surrender or punishment by his own tribe in accordance with local tradition.
Although persons accused of crimes are entitled to bail, there have been a number of restrictions placed on this right in cases involving alleged threats to national security. In late 1992, the law requiring automatic bail for anyone in jail for two years who had not yet been convicted was rescinded, and the high courts were prohibited from hearing bail applications from persons facing trial in the special courts set up in 1975 to try terrorists. A Pakistani jurist commented: "The government can now arrest anyone, call him a terrorist, and keep him in prison indefinitely."
In order to check the trafficking of narcotic drugs which has assumed alarming proportion in the recent years, it was considered necessary to award exemplary punishment to the criminals involved in offences relating to trafficking in, or financing the trafficking of heroin or cocaine or opium or coca leaf, or their import into Pakistan, export from Pakistan, import or export inter-provincially etc. Resultantly, Dangerous Drugs (Amendment) Act, 1994 was passed by the Parliament which provides for forefeiture of assets of the accused sentenced to imprisonment for a term of two years or more. It also provides for death penalty for the offences relating to inter-provincial transport, import into, or export from Pakistan of narcotic and trafficking or financing the trafficking of narcotics.
Prohibition (Enforcement of Hadd) (Amendment) Act, 1994 was passed by the Parliament to remove a legal lacuna in the law arising out of the use of word "raw" before the word "opium" used in the statute. The word "opium" and not the words "raw opium" has been defined in the law. Due to this lacuna in the law, the courts had found it difficult to award proper punishment to the accused in such cases.
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