Rule of law: controversial new legislation boosts power of Pakistan’s military
Rebecca Root, IBA Southeast Asia CorrespondentTuesday 19 September 2023
The amendment of two laws in Pakistan has granted the country’s military intelligence agencies additional powers that critics say will encroach on the rule of law and the potential for democracy in the country.
The Official Secrets Amendment Bill and the Pakistan Army Amendment Bill, both passed in early August, together make the disclosure of any information deemed sensitive to national security punishable with a prison sentence and fine, while broadening the definition of an enemy of the state to anyone who ‘directly or indirectly, intentionally or unintentionally’ engages with a foreign power or group guilty of anything seen as ‘prejudicial to the safety and interest of Pakistan’.
The new laws also grant the military’s Inter-Services Intelligence and Intelligence Bureau agencies powers to search – without a warrant – any person or place suspected of breaching the law.
According to Uzair Younus, Director of the Pakistan Initiative at international affairs think tank the Atlantic Council’s South Asia Center, the motivation behind the legislation is the belief that criticism of the armed forces on social media or on WhatsApp channels undermines the security and sanctity of the country and has an effect on their morale. But Marvin G Weinbaum, Director of Afghanistan and Pakistan Studies at the Middle East Institute in Washington, DC, believes the military simply wants a ‘free hand in making arrests and searches without having to be concerned with warrants’.
Given its purported effect on morale, simply criticising the military – which is the seventh largest globally, is influential in the country’s politics and whose intelligence services have been linked by organisations such as the UN Office of the High Commissioner for Human Rights to enforced disappearances – is now punishable, says Younus.
Democratic values and human rights are, as a direct consequence of these laws, being worryingly compromised
Tahera Mandviwala
Secretary-Treasurer, IBA Law Firm Management Committee
Pakistan’s government didn’t respond to Global Insight’s requests for comment.
The legislative changes ‘curtail civil liberties, freedom of expression and give excessive control to the military to intrude in civilian affairs’, says Tahera Mandviwala, Secretary-Treasurer of the IBA Law Firm Management Committee, Co-Chair of the IBA India Working Group and a partner at TDT Legal in Mumbai. ‘They have criminalised defamation of the armed forces and given intelligence agencies sweeping powers to target dissidents and political rivals. Democratic values and human rights are therefore, as a direct consequence of these laws, being worryingly compromised.’ The amendments, adds Younus, have had ‘a chilling effect’.
The country’s opposition leader and former foreign minister, Shah Mehmood Qureshi, has already been arrested under the amended Official Secrets Act for his alleged misuse of a diplomatic cable. His political party, Pakistan Tehreek-e-Insaf (PTI), has strongly condemned the arrest, saying it’s without justification.
The controversy isn’t only about the content of the laws but how they came to pass. The President of Pakistan, Arif Alvi, said in a statement on X, formerly Twitter, that he didn’t approve the amendments, raising the question as to their legality. But the Ministry for Law said that the President, as an alternative to assenting to the bills, could instead have referred them to parliament with ‘specific observations’. Alvi did neither, which meant that after ten days from the bills’ approval in parliament, the changes automatically became law. These events took place shortly before Pakistan’s parliament dissolved at the end of August.
In spring 2022, former Prime Minister Imran Khan, who was known for his anti-corruption stance, received a vote of no-confidence and was forced out of the position he’d held since 2018. In May, he was arrested on corruption charges. Khan described the charges as part of a military campaign designed to prevent him from participating in the upcoming general election. Over the years, he has been vocal in his criticism of the military and claimed it was behind an attempt on his life in 2022, allegations the military called ‘fabricated’. The Supreme Court later found this arrest to be illegal; however, Khan was arrested again in early August after a court found him guilty of corruption in a case involving the alleged selling on of gifts from heads of state. Khan denies all wrongdoing.
Following Khan’s arrest in May, a series of protests led by PTI supporters swept the country. In response, thousands of people linked to PTI were arrested. At the time, rights groups expressed concern about the arrests and subsequent reports of torture and forced disappearances. This only led to further criticism of the military, which Younus believes is the catalyst behind its push for increased powers. ‘Instability creates more space for the military to further assert itself in ways we may not like’, he says.
Until an election takes place, an interim government is at the helm, one that’s ‘entirely under the thumb of the military’, says Weinbaum, who adds that ‘the military is taking full advantage of this opportunity to put in place everything that’s on their wishlist’. The result, he says, is that any potential for ‘a flourishing democracy’ is threatened.
Mandviwala calls on the international community and particularly the legal sector to put ‘the right pressures on the systems to stop abuse of due process and protect the rule of law’. Indeed, in early September, the Pakistan Bar Council and the All Pakistan Lawyers Convention both organised strikes, calling for a date to be set for the country’s upcoming election, the release of political prisoners, an end to the military’s role in politics and for effective measures to be implemented to address Pakistan’s economic crisis.
Younus says the governments of other countries, such as the US, which is a large exporter from Pakistan, could push for a certain level of democracy to be maintained in the country. ‘But at this point in time, we need to put all these developments in Pakistan in the global context’, he says. He highlights coups in Africa, the war in Ukraine and democratic backsliding in parts of Asia. ‘I fear we might go back to the Cold War era where geopolitics […] will trump human rights and democratic reform in parts of the Global South’, adds Younus.
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