This article reflects upon the post-colonial theories considering the Khyber Pakhtunkhwa Actions (in aid of civil power) ordinance, 2019, keeping parallel the views of Mbembe, Agamben, Schmitt, and Hussain.
The primary purpose of the Ordinance is to deter criminals from spreading violence in the territorial region. In aid of civil power, the draconian actions have been promulgated recently by the Khyber Pakhtunkhwa government under the “special conditions” of threat, war, and to restore peace and stability to the region. The law, even though passed in 2019, has its roots in the colonial epoch. The AACPR Ordinance, 2019, is in line with the colonialist power practices wherein the armed forces must be given special powers. They receive the right to detain persons in internment centres without following the due process to detain. Persons can be withheld without the right to a fair trial and the right to be presented before a magistrate. An accusation by the armed person can amount to a conviction.
The establishment of the emergency eradicates the rule of law; universal laws are suspended in case of existing threats. Focus on various laws and how the colonizers applied different rules to the natives and their state is evident in Hussain and Schmitt’s theories. One of the main characteristics of the rule of law that has been discussed is that law should be clear, with proper procedures. The country gained freedom from the British Colonizers’ physical control; however, we have yet to attain psychological freedom. The AACPR Ordinance, 2019, is a perfect example of the colonizer thinking. They had added the ability to create exceptions to their laws, to exercise control over the colonized. Our legislature has employed a similar mentality. I believe that the very fact that the Ordinance itself does not define an actual “state of emergency” shows—in co-relation with Hussain’s theory—that the state has even more power to define it as the state sees fit. Hussain showed that vague laws could be used to be interpreted against the citizens. He also discussed emergency to revert to normalcy—through a change of power arrangement in the emergency period. The AACPR Ordinance, 2019, does expire after three months; however, it fails to make up for the power abuse caused while it was in effect. While the law arose out of the correct constitutional procedure, it—regardless of favouring the natives—conflicts with their fundamental rights, also constitutionally protected.
The state’s ability to transgress fundamental rights such as the right of freedom of speech, the right to a fair trial, the right to privacy, and the right to dignity of person exhibits the continuing fight with colonialism three constitutions and seven decades later. Although one may agree that some situations may arise, which necessitates immediate action, it is the sovereign who decides what such a situation is and what is not. It seems to be that the state may necessitate an emergency in any situation, with no checks on it. Schmitt delves into this state’s unchecked power by explaining that this gives the sovereign a loophole for measures to be taken in the shadow of necessary precautions under abnormal situations. According to Schmitt, the deferment of fundamental rights and the use of violence in emergencies becomes necessary. He believes they are essential to prevent one group of people from sabotaging the other.
Another central theme evident is the use of the rule of law to legitimize the power exercised. Most laws are self-created by the colonizers in order to keep control of the natives. The laws are designed so that the natives get the minimum rights without even feeling that their rights are being infringed. According to Mbembe, by bypassing laws through the legitimized law-making process, the colonizers can maintain authority and legitimization without the consent of the natives. This allows the colonizers to play the natives by the rules created by the powerful, and any action of the natives that did not fall within the self-created laws would be considered an outlaw. This directly links to the AACPR Ordinance, 2019, where it expressly states that the armed forces are permitted to “carry out actions in aid of civil powers in any defined area.” The concept of being an outlaw, if charged with the non-compliance of the rules An Outlaw’s life is of no value to society, but he still falls under the authority of the sovereign. Even after almost seven decades of being free, the legitimization of such ordinances makes us question the true extent of our freedom.
The purposes of exercising straightforward power take on self-governing freedom. The sovereign, being the government of Pakistan, has the right to treat those who fail to comply with the law by any means. The AACPR Ordinance, 2019, takes on an insoluble character and becomes arbitrary such that it dwells on itself. Mbembe speaks about this arbitrariness. Unless we estimate the true nature of the results caused by the very wording of the Ordinance itself, there will be no final safeguards to domination.
The powers of the sovereign—through the Ordinance—extend to both external and internal spheres simultaneously. The AACPR Ordinance, 2019, puts forward this theory into practice as it allows the government the use of article 245 of the constitution of Pakistan where immense authority and power is given to authorized persons to eradicate threat or war, as stated in the Ordinance “in order to secure the territory and ensure peace.” We see an illustration of how this means that declaring the emergency and the laws that govern within that situation are up to the sovereign’s discretion in the theory of Agamben. In a reflection parallel to Schmitt’s theory of the government and its right to create laws in exceptional situations, it is evident that the sovereign may exclude the offenders causing chaos within the state. The government can declare an emergency instantaneously. However, the power being misused by the government would result in an investigation; however, according to the Ordinance, cases of misuse of power under this law will be “investigated within the hierarchy of the armed forces.” This makes the investigation a mere formality with minimal effectiveness and the ability to protect the right of the citizens of Khyber Pakhtunkhwa.
The post-colonial theories, concerning the theories, emphasize the effect of colonization on state structures and institutions even after attaining absolute freedom from the colonizers. The colonizers made laws of their own choice to find excuses to treat humans as animals by stripping off their fundamental rights when deemed necessary. The Ordinance is the epitome of the deeply rooted colonial mindset prevalent in the laws promulgated to this date.
Here onwards referred as “AACPR Ordinance, 2019”
Achille Mbembe, On the Post colony (Berkeley, CA: University of California, 2001).
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1995).
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago and London: University of Chicago Press, 1985).
Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor, MI: The University of Michigan Press, 2003).