Lahore-Kuala Lumpur-Paris-Geneva, 7 November 2013
Dear Madam Special Rapporteur, dear Messrs. Chair-Rapporteurs, dear Messrs. Special Rapporteurs,
Re: Concerns over new security laws in Pakistan and Malaysia
We would like to express our concerns over the recent proliferation of new abusive security laws in Pakistan and Malaysia. This trend, which both governments justify by counter-terrorism strategies or specific threats to national security and public order, undermines human rights, in addition to being counter-productive. Existing national security laws are usually formulated in overly vague and broad terms, which leads to arbitrary application. They also give rise or allow practices prohibited by international law, including extrajudicial killings, arbitrary detention, enforced disappearances, torture or more generally excessive restrictions over fundamental liberties.
In Pakistan, the amendment to the 1997 Anti-Terrorism Act (ATA) adopted on 11 October 2013, was followed by parliamentary endorsement on 20 October of the Protection of Pakistan Ordinance, supposed to protect the country from those “waging war against Pakistan”. Both ordinances blatantly violate basic human rights safeguards. Under the amended ATA, suspects can be detained for up to three months without charges. While Anti-Terrorist Courts and special prosecutors for so-called ’terrorist crimes’ have been in operation in Pakistan since the 1970s, new special courts and separate prosecution agency are due to be established. It is noteworthy that the resources required to implement this parallel justice system will deter efforts to increase the number of judicial officers and otherwise strengthen the normal judicial system, which the judiciary in Pakistan has been demanding for many years.
Some of the provisions of the new ordinances give national security forces – including police, military and para-military forces, Pakistan rangers, Frontier Corp and Frontier Constabulary – the power to carry out expeditious investigations, fire on suspects, enter and search any premises without warrant, and detain convicts at any place other than regular prisons. They also allow for conviction on the basis of incriminating text messages, phone calls, and email while telephones and internet facilities can now be freely tapped and monitored. The Protection of Pakistan Ordinance includes, in particular, vaguely worded offences such as “acts that are calculated to influence or affect the conduct of government by intimidation or coercion”, “offences based on discrimination, hatred, creed and race”, “transcending or crossing national boundaries”, and “internet offences”, all these “if committed with the purpose of waging war against Pakistan”. In the past, similar provisions have been used to target trade union leaders, lawyers and students who were exercising their constitutional rights to assembly and protest. The fear that the ordinance could be used against the Baloch or other nationalist dissidents cannot be dismissed.
In Malaysia, the long-awaited repeal of two draconian security laws in September 2011 – the Internal Security Act (ISA) of 1960 and three emergency declarations, including the Emergency (Public Order and Prevention of Crime) Ordinance of 1969,1 was welcomed. In practice, however, pre-trial detention has continued through the Security Offences (Special Measures) Act, passed in June 2012 and the amendment to the Prevention of Crime Act (PCA), recently approved by the Parliament on 3 October 2013 and passed by the Senate on 10 October 2013. Some suspects under the ISA continue to be detained, without having been charged and tried with a recognisable criminal offence, while other existing laws, including the Dangerous Drugs Act 1985, and the Sedition Act 1948, place further restrictions on fundamental freedoms.
The most recent amendment to the PCA provides that the Prevention of Crime Board, a body effectively appointed by the Executive, can “direct that any registered person be detained under a detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time”. It would therefore be possible to repeatedly extend a person’s detention for two years, every two years, as long as such detention is considered in the interest of “public order, public security or prevention of crime”. The Prevention of Crime Board’s leading criterion for issuing a detention order is “that the registered person has committed two or more serious offences, whether or not he is convicted thereof”, in clear violation of the principle of presumption of innocence. At the same time, the amended act does not allow for a process of judicial review, except on matters of procedure, making it almost impossible for individuals detained under the law to challenge the decision to detain them effectively.
The context in Pakistan and, to some extent, in Malaysia can only comfort the idea that such strategies are failing. In Pakistan, the implementation of tighter security measures to deal with the lack of rule of law and growing insecurity, has in the past further jeopardized the human rights situation in the country. The government’s double-edged strategy to fight extremist groups while at the same time opening peace talks with them, which it is currently pursuing, may only send mixed messages to the people of Pakistan, who largely fear this may take place at the cost of their human rights. In Malaysia, the PCA was reportedly used to detain over 200 people in August 2013 as part of what police described as a crackdown on crime. Malaysian civil society organizations, activists and human rights lawyers raised concerns that the new amendments could only pave the way backward to abusive security regulations in effect until short ago.
On the occasion of United Nations Working Group on Arbitrary Detention’s 68th meeting, from 13 to 22 November, and before the recession of the United Nations General Assembly on 15 December, we therefore recommend you to make use of your mandate to persuade the concerned Governments to undertake a comprehensive review of national security laws that restrict fundamental human rights and freedoms, and repeal or amend them to ensure their compliance with international human rights law and standards; and engage civil society groups in a transparent and effective manner throughout the process.
In addition, the UN Working Group on arbitrary detention should make a visit request to Pakistan and follow up on its visit to Malaysia in June 2010; the UN Working Group on enforced or involuntary disappearances should follow up on its visit to Pakistan in September 2012; the UN Special Rapporteur on extrajudicial, summary or arbitrary executions should follow up on his repeated visit requests to Pakistan (2000, 2005, 2012); the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism should follow up on his visit requests to Pakistan (2006, 2008, 2010 and 2012) and Malaysia (2005, 2010 and 2012); the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment should follow up on his visit request to Pakistan (2011); and the UN Special Rapporteur on the independence of judges and lawyers should follow up on her visit request to Malaysia (2011) and her visit to Pakistan in May 2012, in particular by following up on her recommendation to the Government to amend the Anti-Terrorism Act and make explicit reference to procedural guarantees.
We remain at your disposal for further information.
Most sincerely,
Karim Lahidji, President, FIDH
Zohra Yusuf, Chairperson, Human Rights Commission of Pakistan, and Vice-President, FIDH
Nalini Elumalai, Executive Director, SUARAM
Letter sent to:
Working Group on arbitrary detention
Mr. El Hadji Malick Sow, Chair-Rapporteur
Working Group on enforced or involuntary disappearances
Mr. Ariel Dulitzky, Chair-Rapporteur
Special Rapporteur on the independence of judges and lawyers
Ms. Gabriela Knaul
Special Rapporteur on extrajudicial, summary or arbitrary executions
Mr. Christof Heyns
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism
Mr. Ben Emmerson
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
Mr. Juan Méndez
Office of the High Commissioner for Human Rights
Palais Wilson, 52 rue des Pâquis, 1201 Geneva