THE PRIMACY OF FEDERAL CRIMINAL LAW
IN NATIONAL SECURITY
Modern states use their coercive authority through criminal law, which derives its legality and legitimacy through constitutional law. This linkage between a state’s penal and coercive power and its criminal law is not only to be found in Western democracies, but is also part of statecraft in countries like China and Russia, which apparently do not follow the ‘rule of law’ paradigm yet have their own sets of criminal laws in place. In this context, it must be noted that state (and not the government) of Pakistan can and should link its national security discourse with criminal law to equip itself with lawful powers that sustain the constitutional tests in judicial reviews before the courts, and also to ensure that certainty and severity of state actions and sanctions are applied with full force. This is, however, not so straightforward. In practice, the binary of federal and provincial is invoked. Most often than not, it is told that criminal law is in the domain of provinces. This is done by masking and labelling criminal law as ‘law and order’, a term that is alien to the Constitution of Pakistan. ‘Law and order’ is not a legal term and is, at best, an administrative one, which should not be made basis of dividing constitutional roles between the federation and the provinces. A more specialized, constitutional and legal term of ‘criminal law’ serves the national security better due to the dynamic nature of the security threats that express themselves in non-traditional and less territorial terms. Owing to the latest national security concerns, the centrality and primacy of criminal law in meeting national security requirements cannot be discounted. The following are reasons and areas of concern that must be considered while imagining the role of criminal law in national security:
1. The criminal law, criminal procedure and evidence are ‘concurrent subjects’ under the existing constitutional arrangements. Their federalist characteristic is more pronounced owing to Article 143 of the Constitution of Pakistan that incorporates ‘prevalence’ of federal criminal law over provincial criminal law whether the former is enacted ‘before’ or ‘after’ the latter.
2. The anti-terrorism law (i.e. the Anti-Terrorism Act, 1997) is a criminal law in essence. It is a federal criminal law which enables both the federal and provincial governments to implement sanctions regime introduced by international and national inter- and intra-government organizations. The proscription of persons, organizations and their associates all get implemented by invoking the law. The law also defines terrorism and provides enabling provisions to constitute joint interrogation as well as joint investigation teams (JITs) that foresee a co-opted mechanism in which civil and military law-enforcement agencies (LEAs) work in tandem. The present edifice of set of laws related to Financial Action Task Force (FATF) was also largely built in and around this federal criminal law.
3. The international human rights law as international legal obligations of Pakistan can be enforced in form of federal criminal law. Resultantly, it may be observed that the Juvenile Justice System Act, 2018, was enacted to fulfil the international legal obligations of Pakistan in connection with its obligations to implement the Convention on the Rights of the Child (CRC). More of such examples are there on the statute books and must be used in full to oversee comprehensive implementation of the international legal obligations.
4. The anti-corruption law (the National Accountability Ordinance, 1999) is a federal criminal law. Precisely for this reason, it may be observed that Sections 3 and 19 of NAB Ordinance, 1999, provide the overriding effect on all other laws. The National Accountability Ordinance 1999 Sindh Repeal Act, 2017, was enacted on 9th August 2017 but could not be implemented due to bar contained in Article 143 of the Constitution of Pakistan. The provincial anti-corruption agencies have similar mandate of checking corruption but have dissimilar subjects, i.e. provincial employees.
5. The Anti-Money Laundering Act, 2010, is, besides being an administrative law, a federal criminal law as it criminalizes money laundering and provides lists of predicate offences that provide jurisdiction to federal organizations to investigate, prosecute and initiate cases for international legal cooperation in criminal matters. The spate of laws like the Mutual Legal Assistance (Criminal Matters) Act, 2020, the United Nations Security Council (Amendment) Act, 2020, the National Counter Terrorism Authority (Amendment) Act, 2020 and amendments in anti-terrorism law enacted in 2020 were applicable to whole of Pakistan. This national application of these laws classifies them as federal criminal laws.
6. The criminal activities taking place in cyberspace are also checked by federal criminal laws, i.e. Prevention of Electronic Crimes Act, 2016, and the Pakistan Telecommunication (Reorganization) Act, 1996. The two sets of laws define cybercrimes and provide for criminal procedure to be undertaken. Both laws are federal laws and provide for prevention, regulation and detection of cybercrimes.
7. The offences stated in commercial and regulatory laws read with the Federal Investigation Agency Act, 1974, provide for very important federal criminal laws. The Companies Act, 2017, the Limited Liability Partnership Act, 2017, the Benami Transactions (Prohibition) Act, 2017, the Securities Act, 2015, and all the laws relating to corporate and business structures provide for specific offences that can be investigated, prosecuted and tried only by federally constituted organizations and courts. The serious corporate offences having national and international linkages can only be tried by federal organizations.
8. The armed forces-specific laws like Pakistan Army Act, 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, the Official Secrets Act, 1923, and Pakistan Nuclear Regulatory Authority Ordinance, 2001, contain specific offences that are federal crimes and are species of federal criminal law.
9. According to the latest judgement of the Supreme Court of Pakistan, policing and police laws are subsets of criminal law and procedure. The concurrent legislative value of criminal law and its subsets have the prowess and potential to strengthen the state of Pakistan that must express its coercive and penal power through lawful means to make them sustainable, fair and loaded with value system of the rule of law.
Above points are indicative, and not exhaustive. The emerging global security landscape is largely non-military and this latest trend of blending the international with national and hiding the traditional agendas behind non-traditional agenda impress upon Pakistan’s policymakers to acknowledge the primacy of criminal law in protecting national security interests. From dealing with Kulbhushan Jadhav’s case to highlighting violations of international human rights laws in Indian Illegally Occupied Jammu and Kashmir, law fare is at work and investing in it is an essential point of departure for future warfare.
The author is an independent researcher
and has done his BCL from the University of Oxford. Email: firstname.lastname@example.org