Introduction
According to Charles Kennedy, an eminent political scientist, Pakistanâs security regime is quite unprecedented. Giving a critical account of Pakistanâs security regime in an essay, Kennedy concludes with the following note: âThe tortured history of Pakistanâs anti-terrorism regime should give pause to prospective latecomers to the process (e.g., the United States, Britain, EU, Australia).â1 Innocuous as it may appear, Kennedyâs advice at once begs the question: are the Western states really latecomers in introducing legal security regimes? Apparently, in the short view, the answer might be affirmative. We know that one of the major anti-terrorism laws in Pakistan was passed in 1997 and later amended on August 14, 2001, about a month before the terrorist attacks of 9/11. On the other hand, in the United States and the United Kingdom, some of the major anti-terrorism laws were not passed until after the 9/11 attacks.
However, when we view the security regimes of the West in the long term, or approach them with a genealogical lens, we come to the contrary conclusion: (a) the Western security regimes are much older, and (b) they have constituted the main source of the security regimes of the postcolonial states of Pakistan and India. In fact, these postcolonial states have inherited security laws from the British colonial state of security in India. Similarly, in making their latest anti-terrorism acts (ATAs), Pakistan and India have drawn on more recent Anglo-American security laws. In this chapter, and in the next, in the genealogical account that I give of Pakistanâs security regime, I try to make these points. However, let me also clarify at the outset that my aim is not to discover which state has the oldest security regime. Rather, I aim, where possible, to highlight how the Western and Pakistani security regimes have been historically related.
On a broader level, our focus on the security regime of Pakistan takes place within the scope of two juridical derogations that this security regime entails: (a) the suspension of the rule of law and (b) the suspension of civil courts or parts of their jurisdictions. The former derogation results from provisions that allow for preventive detention, and the latter results from provisions for special courts, such as anti-terrorist and martial courts, as well as from providing for speedy and extraordinary trial procedures. I point out that the genealogy of these derogations, along with the juridical categories underpinning them (in Pakistan and, for that matter, in India), can be traced back to early-19th-century colonial laws, especially Regulation X of 1804 and Regulation III of 1818. The legal form and substance of these regulations were both drawn from certain security laws of England, especially the law of high treason. Once introduced within colonial India, these juridical derogations thrived through the colonial era and were kept on in Pakistan and India after independence. After surviving through the post-independence era, they have, only recently, in the wake of the War on Terror, come to converge with the global paradigm of security.
The colonial state of security
The colonial security state in India began with the introduction of certain criminal regulations, as mentioned previously, in the early 19th century. When we trace further the genealogical roots of these regulations, we find that they go back to the English Mutiny Acts of the 17th and 18th centuries. It is also interesting to notice, as one recent genealogical account demonstrates, that the Mutiny Acts have been foundational to the Western, or at least the British, paradigm of security.2 On the indication of this genealogical account, it can be further conjectured that the first Mutiny Act of 1689 provided the elemental basis for two exceptions to the rule of Common Law: it made martial law courts relevant to peacetime and applicable at home. However, at the time, the exceptions were hardly consequential for the rule of (Common) lawâthey neither implied the suspension of law nor yielded a new prerogative to the sovereign to proclaim martial law within the realm. While the exceptions would take time to manifest their legal consequences, the object of the act was quite manifest and consequential. It was to provide for the security of the sovereign and the realm, especially in the face of the fledgling institution of a standing army, which, it was feared, could pose a potential threat of rebellion/mutiny. However, even as the object of the act was clear, it can be argued that it did not set out anything new. The security of the sovereign and the realm had long been an enduring political concern, one that was well recognised in Common Law and ensured by a severely punitive lawâthe law of high treason. Accordingly, should we endeavour to trace the normative origins of the paradigm of security in England, we will have to stretch our genealogy further back to the high treason acts. The mutiny acts, for their part, came as corollaries to the law of high treason, especially at the time when the expediency of disciplining a fledgling standing army on the one hand, and the constraints imposed by the Petition of Rights of 1628 on the sovereignâs martial law powers on the other, produced room for them.3
The law of high treason had, at a minimum, two key substantive elements that link it to the colonial and modern paradigms of security. One key element was loyalty to the sovereign and hence, the urgency of his security, which, as the object of the law for a long time, was sanctioned as paramount and above the very basic rights of subjects. Another key element, which follows from the first, was the subject of the law: the offences directed against the security of the sovereign and the Realm. These offences primarily included levying war or taking up arms, aiding and abetting the enemy, and rebellion. The normative relationship between the law of high treason and the colonial and modern states of security evolved gradually, I presume; these key elements of the law of high treason, with some adaptation in their form but not much in their substance, were passed on to the colonial and modern states, especially to their security and anti-terrorism laws, over the course of the following two centuries. In this long course, one of the initial, crucial junctures came in the shift in security concern from the person of the sovereign to the political entity of England. It came, or at least began, in the middle of the 19th century, when the Treason Acts of 1842 (and later of 1848) marked âa departure from equating the monarchâs personal safety with the essential security of the state,â which is obvious in the provisions for the reduction of certain high treason offences to high misdemeanour and felony.4 In other words, the defining aspect of this departure was how the key elements of the law of high treason created the occasion for the offences against the state, or simply put, political offences. Accordingly, we can argue that the early signs of the modern paradigm of security in England emerged during this time, with the unpacking of (or âambivalence towardâ5) the law of high treason and the rise of the offences against the state. However, it is important to note that it was not until World War I and the passage of the Defence of the Realm Act (DORA) in 1914 that the paradigm of security in England became manifest and legally consequential. In other words, it is in the DORA that we see the convergence of the two exceptions mentioned earlier: (a) the exception of martial law and martial courts, originally conceived in the Mutiny Acts, and (b) the supremacy of the security of state over the rights of subjects, originally grounded in the law of high treason.
The convergence of the key substantive elements of the laws of high treason and mutiny in the DORA (1914), however, was not the first of its kind. About a century earlier, in the colonial state of Bengal, the British had attempted this convergence in the form of Regulation X of 1804. In other words, the English laws of high treason and mutiny provided the key elements for designing this colonial law of security. The offences that were deemed treasonous under the Treason Act 1351 were provided in Regulation X almost verbatim and were subject to martial law jurisdiction. Three such categories of offences are worth noticing. First, the offence of âlevy[ing] war against our lord the Kingâ provided in the High Treason Act was phrased in Regulation X as follows: âto have borne arms in open hostility to the authority.â Second, the offence of âbe[ing] adherent to the Kingâs enemies in his realm, giving to them aid and comfort in the realm or elsewhereâ provided in the High Treason Act was phrased in Regulation X as follows: to have âabetted and aided the enemy.â Third, the petty treason in the Common Law was provided in Regulation X as follows: to have âcommitted acts of violence and outrage against the lives and properties of the subjects.â6 From their experience at home, the British colonial administrators were well aware of the fact that the trial procedure of high treason was considerably cumbersome and often lengthy and hence not suitable to their interests in the colonial state. Therefore, the administration chose to introduce a different law, Regulation X, and empowered the colonial administration to try treasonous offences in martial courts.
Regulation X provided that the Governor-General in Council could (a) establish martial law, (b) suspend or direct any public authority or officer to suspend the ordinary Criminal Courts of Judicature, and (c) direct an immediate trial by courts martial. The regulation not only provided for punishment by death, but also provided for the punishment of forfeiture of property and effects real and personal (as in the case of high treason). Later, Act V of 1841 provided that the government could issue commissions to set up tribunals competent to try offences mentioned in Regulation X.7 Two decades later, the Indian Councils Act 1861 empowered the Governor-General to issue ordinances to authorise special tribunals, during times of emergency (the existence of which he himself determined), to try offences contained in Regulation X.
In England, by the turn of the 18th century, it had become evident to the government that the law of high treason and the severe punishment it awarded was, at times, not enough to guarantee the security of the sovereign. Meanwhile, the nature and understanding of a threat to the security of the sovereign was undergoing crucial change from a concern for revolts and rebellions to that of commotion, rioting, and public disorder. These latter forms of offences, although directed against the state, could not be dealt with through the law of high treason, due partly to both the difficulty of a lengthy trial procedure and to the question of proportionality of punishment. In order to deal with these offences, the government came up with a different solution. It chose to suspend habeas corpus and to place individuals under extended detentions. For instance, in the last decade of the 18th century, during its wars against revolutionary France, the government suspended habeas corpus twiceâfrom May 1794 to July 1795 and again from April 1798 to March 1801. Later after end of the war, as a violent proletariat movement for parliamentary reforms began, and especially when the Prince Regentâs coach was attacked in January 1817, the parliament enacted the Habeas Corpus Suspension Act 1817.
The following year in Bengal, Regulation IIIâA Regulation for the Confinement of State Prisonersâwas passed, which authorised the colonial administration to suspend habeas corpus, even before such a right was constitutionally guaranteed.8 A year later, a similar regulation was enacted in Madras. The suspension of habeas powers were justified for âthe reasons of stateââa phrase that corresponded to the predominant political rationality of the time, the raison dâĂ©tatâwhich was said to be the maintenance of alliances formed by the British government, preservation of tranquillity in the dominions, and prevention of internal commotion. The Regulation declared:
Whereas reasons of stateâŠoccasionally render it necessary to place under personal restraint individuals against whom there may not be sufficient ground to institute any judicial proceeding, or when such proceeding may not be adapted to the nature of the case, or may for other reasons be unadvisable or improper.9
Apart from depriving the detainee of the right to be presented before a magistrate and to a legal counsel for defence, he was also deprived of the right to be informed of the grounds of his detention. These procedural rights were an important part of the rule of law in England. The officer under whose custody the detainee was placed prepared a bi-annual report âon the conduct, the health, and the comfort of such state prisoner, in order that the Governor-General in Council may determine whether the orders for his detention shall continue in force or shall be modified.â Hence, on his discretion, the Governor-General in Council could extend detention of âa state prisonerââa new juridical category that stood between the categories of a regular prisoner and a prisoner of warâevery six months and potentially make it indefinite. There was no provision for judicial oversight through an advisory board. Apart from authorising preventive detention, the regulation also gave powers to the colonial government to take away a prisonerâs estates and property. This kind of punishment exhibits a link to the high treason laws mentioned earlier. However, according to one opinion, âthe subject was protected in that only a very high authority, the Governor-General [âŠor the Governors] were empowered to order detention, and not a subordinate official or police officer.â10
Although Regulation III introduced preventive detention in colonial India, it was not well defined. The regulation only envisioned it to be âpersonal restraintâ exercised by the head of colonial administration. A century later, the British higher judiciary in Rex v Halliday (1917) tried to explain preventive detention as different from punitive detention, thus laying the ground for its acceptability and reasonability: âIt is not punitive, but precautionary measure.â The judiciary further argued that in time of emergency âit [was] essential to public safety that there should exist in the executive a power of preventive detention.â On the other hand, in his commentaries, Blackstone had already made the task easier for the judges by justifying preventive detention as an emergency measure on the ground that it was Parliament, rather than the Crown, that would determine whether the emergency existed. Thus he wrote that Parliament could âauthorise the Crown, by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected person without giving any reason for so doingâ11 (emphasis mine). Blackstone would, however, never know that a few years after his death, the power to suspend the Habeas Corpus Act and the right enshrined within it would become a permanent tool of governance in the hands of the Crown. In colonial India, once the power to suspend habeas corpus was sanctioned in 1818, its exercise continued for the entire colonial period. Later, the postcolonial states happily adopted it.
In 1850, the Governor-Generalâs territorial jurisdiction under Regulation III (1818) was extended to all conquered territories of the East India Company. Moreover, a proviso was added regarding âthe removal of doubtsâ of courts relating to the question of whether state prisoners could be âlawfully detainedâ in the territories under their jurisdiction.12 Eight years later, the regulation was introduced in the provinces of Madras and Bombay with another added proviso: that the Governor-General in Council could order the removal of state prisoners from one place of confinement to another, within the territories controlled by the Company. Moreover, the power to detain was also made available to provincial governors.13 In 1861, the Indian Council Act promised to bring âpeace and good governmentâ to the country, but only after reiterating the Governor-Generalâs power to authorise preventive detention by way of issuing ordinances.14 Finally, in ...
