PREVENTIVE DETENTION —CONSTITUTIONAL SAFEGUARDS

PREVENTIVE DETENTION CONSTITUTIONAL <!--[if gte mso 10]> PREVENTIVE DETENTION CONSTITUTIONAL SAFEGUARDS By Lt Col (R) Muhammad Younus, Lecturer, Faculty of Shariah and Law, International Islamic University, Islamabad INTRODUCTION Detention is the result of arrest which is made by the police for any crime .The Black's Law Dictionary has given same meanings to the detention .However confinement imposed usually on a criminal who has threatened to escape, pose a risk of harm or otherwise has violated the law while awaiting trial also falls under the same definition'. The detention of a person for his own safety and security has been termed as protective custody while custody intended to prevent further dangerous or criminal behavior is defined as preventive custody. The preventive detention and its safeguards mentioned in Art. 10 of our Constitution fall under the latter definition. 1 Black's Law Dictionary 2004 ed, P.480 2 Ibid, P 412 The preventive detention makes an inroad on the personal liberty of a citizen if adequate safeguards are not provided to him. The writer's purpose here is to analyze the safeguards which have been part of the Fundamental Rights of the people, in the light of the case law on the subject. In this connection reference is made to Art.7 of 1956 Constitution, Fundamental Right No. 2 of 1962 Constitution and Art.10 of Constitution of Pakistan 1973.The safeguards embedded in Art.10 cannot be suspended even during the situations of emergency3. 3 Mrs. Habiba Jilani v. Federation of Pakistan, PLD 1974 Lah 153 at.P.168 and Art.233 of the Constitution. LEGISLATION OF PREVENTIVE DETENTION Clause (4) of Art.10 provides the items on which the preventive law of detention can be legislated. These are:-‑ -- To deal with persons acting in a manner prejudicial to the integrity ,security or defence of Pakistan or any part thereof , or -- External affairs of Pakistan., or -- Public order, or -- The maintenance of supplies or services. For the purposes of legislation the subject of preventive detention has .been listed at serials 14 and 15 of Concurrent Legislative List of the Constitution of Pakistan 1973. PRINCIPLES OF PREVENTIVE DETENTION A Division Bench of erstwhile High Court of Sind and Baluchistan in Muhammad Younus v. Province of Sind enunciated the following principles deducible from the four judgments of Honourable Supreme Court of Pakistan; -- Citizen is to be treated in accordance with law. -- The superior courts can probe into the exercise of public power by the executive authority i.e. reasonableness, bona fide intention, presence of good faith and reasonable grounds for detention. -- The legality of detention is to be proved by the detaining authority. -- Reasonable mind to be applied for detention based on all available material. SAFE GUARDS It is most important to note that the only power of the executive for preventive detention would have to be derived from law and the law itself would not be able to confer upon executive any power to deal with a citizen in contravention of a Fundamental Right: The. following is the summary of the safe guards: Communication of Grounds of Detention.---The grounds are to be communicated for the knowledge of the detenu so-that he can make recourse to the legal process for his release. Every detainee has to be informed of the grounds of detention as soon as possible: The failure of detaining authority to comply with the constitutional provisions in this respect renders such detention unlawful. Where the .grounds are indefinite, irrelevant or vague, the order of detention is without lawful authority. Where some of the grounds are vague, indefinite or irrelevant the whole order stands vitiated. Where grounds were not communicated to detenu, detention orders were declared illegal and extension of such detention by the Provincial Govt. was also declared illegal9.Previous detention cannot be converted into preventive detention and while disclosing the grounds, the facts constituting grounds of detention which are not in public interest may not be disclosed 10.The court's power of judicial. review in case of preventive detention is subject to .the right of the State to claim privilege in respect of secret information and of the court's power to hold proceedings in camera". In Zarina Gouhar v. Province of Sind'2 it was held that if one reason stated for detention is bad, the whole order is necessarily bad. Right of Representation.---The detenu has to be provided earliest possible opportunity of making representation against the order of detention so that he may secure his release through the legal process. Degree of Satisfaction.---In the case of Liversidge v. Sir Johrt Anderson" it was held that detaining authority was invested with complete power to be the judge of its own satisfaction with regard to the detention of detenu and that this satisfaction was subjective in nature. The majority decision of Supreme Court. of Pakistan in Ghulam Jilani's case has departed from the rule laid down in Liversidge's case and held that it is no longer regarded as sufficient for the executive authority, merely to produce its order saying that it is satisfied. Such authority must satisfy the court14. The Supreme Court of Pakistan in Federation of Pakistan v Mrs. Amatul Jalil Khawaja15 thrashed out almost the entire law on the subject and laid down that:-‑ -- The court must be satisfied that the material before the detaining authority was such that a reasonable person would be satisfied as to the necessity for making the order of preventive detention. -- That the satisfaction should be established with regard to each of the grounds of detention and 'ii' one of the grounds is shown to be bad, non existent or irrelevant the whole order of detention would be rendered invalid. -- That the initial burden lies on the detaining authority to show the legality of the preventive detention. -- The court can examine the reasonableness of the grounds of detention so as to satisfy itself that the detenu has not been held in custody without lawful authority or ill an unlawful manner. Period of Detention.---It is only the provisions of Art.10 that the period for the preventive detention including the total period thereof, are laid down. In the light of clause (7) of Art.10 no person is to he detained for mare than a total period of eight months hi case of a person detained for acting in a manner prejudicial to public order and twenty months is any other case. This period should fall within a period of twenty four months commencing on the day of first detention, However proviso to clause (7) of Art.10 excludes following from protection under this Clause: Review Board.---Clause (4) Art.7 imposes a condition upon the power of detention without trial vested in authorities under existing laws viz. that the satisfaction of the detaining authority regarding the deed far detaining a particular person shall not by itself be sufficient for continuing that detention beyond an initial period of three mouths unless' an Advisory 'Board as prescribed has concurred in the opinion held by the detaining authority in that respect"' Clause (4) of Art.10 of 1973 Constitution requires that for extension of this period of detention, the case has to be reported to the appropriate Review Board before expiry of each period of three months. The Review Board will provide the detenu an opportunity of being heard in person. For persons detained under a Federal law, the Review Board is to be appointed by Chief Justice of Pakistan. It shall consist of a Chairman and two members, each of whom is or has been a judge of the Supreme Court or a High Court. Similarly for persons detained under a Provincial law the Board is to be appointed by Chief Justice of the High Court .It shall consist of a Chairman and two other members each of whom is or has been a judge of a High Court. Explanation 1 to clause (4) of Art.10 is to provide an alternate adequate remedy to a detenu in case the detention is for a period of more than three months hence its opinion cannot be overlooked". Proviso to clause (5) Art.10 reserves the right of the detaining authority to refuse to disclose the facts which such authority considers it to be against the public interest to disclose. Clause (6) of Art.10 provides that the authority making order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate signed by a Secretary to the Govt. concerned to the effect that it is not in public interest to furnish any document is produced, In Liaqat Ali v. Govt. of Sind it was held that detaining authority must place the whole material upon which the order of detention is based before the Court notwithstanding its claim of privilege with respect to any document, the validity of which claim shall be within the competence of the Court to decide. It was further held in Federation of Pakistan v. Mrs. Amatul Jalil Khawaja19 that when a privilege is claimed by detaining authority even the High Court would be competent to examine the documents /material regarding which privilege is sought in order to determine as to whether such privilege is being claimed inadvisedly, lightly or as a matter of routine. CONCLUSION Preventive detention infringes upon the fundamental right of freedom of movement hence all the Constitutions of Pakistan had laid. down certain parameters to be followed whenever it became dire need of the executive. The court can take judicial review of the detention and it is upon executive authority to satisfy the court. The essence of the concept is not to punish the detenu for something he has done but to prevent him from doing it. Preventive detention is justified on the grounds of necessity. The safeguards can be summarized as follows:-‑ -- Subjects for application of power of detention by the executive authority are specified as per Clause (4) of Art. 10 of Constitution of Pakistan. -- Period of detention is fixed. -- Court can exercise the inherent power of judicial review to ensure that' constitutional safeguards are applied and ensured. -- Any detention beyond the. period of three months shall. require recourse to the process of Review Board as per the constitutional provisions.