Winston Churchill once said, ‘If you have ten thousand regulations you destroy all respect for the law’. The saying is apt for Pakistan, which suffers from excessive legislation. Most of the legislation is arcane in nature as it has been inherited as a colonial legacy. The successive Constitutions of Pakistan have had provisions that protected and ensured continuity of legal rules.
Article 260 of the Constitution of Pakistan 1973 defines an ‘existing law’ by referring to its Article 268(7), which in turn states that all laws in force in Pakistan or any part thereof, or having extra territorial validity are ‘existing laws’. The definition of ‘existing laws’ is fortified by Articles 269 and 270 of the Constitution, which provide for validation and ‘temporary’ validation of laws. The purpose of the legalese is to bring home the point that whatever was legislated in the last two centuries is the law of the land unless it has been repealed. This may sound queer, but this is the legal position. The excessive legislation is further compounded by the Eighteenth Amendment to the Constitution of Pakistan, which brought watershed changes to the Constitution; the utility of these changes will only be determined on the anvil of time. One point, however, needs attention: it has offered a new concurrent field for the legislation in the areas of criminal law, criminal procedure and evidence through introduction of Article 142(b). In view of the new Amendment, the legislation on criminal matters (in which terrorism is but automatically imported) has seen a new trend. More often than not, the laws on the subject of terrorism are being introduced through ordinances; the Protection of Pakistan Ordinance 2013 illustrates the propensity. In the same stride, the provincial government of the Khyber Pakhtunkhwa (KP) has introduced two ordinances styled as the Khyber Pakhtunkhwa Hotels Restriction (Security) Ordinance, 2014 (Hotels Ordinance) and the Khyber Pakhtunkhwa Restriction of Rented Buildings (Security) Ordinance, 2014 (Rented Buildings Ordinance). Brief introduction of the two legislations will be fruitful for any further analysis. The preambles of the two ordinances in their recitals state that the laws have been introduced to provide a mechanism for monitoring the businesses of rented buildings, hotels and guesthouses for the purpose of counterterrorism and for combating crime effectively. The Hotels Ordinance makes it mandatory for the hotel-owners to inform police about their capacity and the management. They are also duty-bound to intimate police about the guests and to check the baggage of the guests. The law is based on the premise that every community member is responsible to uphold the security of the state and to assist the government functionaries in discharge of their lawful duties. A police officer not below the level of Assistant Sub-Inspector can inspect the record, and non-cooperation by the hotel management and owners has been criminalized with one-year punishment or fine or both. It may not be out of place here to refer to Rule 21.1 of the Punjab Police Rules 1934 (which have been adopted by all the police organizations in Pakistan) that is considered as a basic principle of criminal law and organization. It states that:
‘The criminal law of India (sic) and the police organization, which is based upon it, are both founded on the principle that public order depends essentially upon the responsibility of every member of the community within the law to prevent offences and to arrest offenders’
Based on the same rationale, the Rented Buildings Ordinance also empowers the local police to inspect a rented building and for the purpose, the officer shall not be below the level of an Assistant Sub-Inspector. The revenue and estate departments have also been bound by the law to provide lawful information to a police officer and to provide the record, when and if required. Both the ordinances make the offences cognizable, which means that police are empowered to register an FIR in case of any infraction. Notwithstanding the constitutionality of the two Ordinances, the intention appears to be noble and the mechanism devised in the legislation makes the system of inspection, monitoring and security of hotels, guesthouses and rented buildings transparent as on each step objective and documentary evidence is to be generated by the police and the community. The legislation success hinges on the performance of police, which can use and abuse the law. On policy level, the legislation may be emulated by other provinces, but there is dire need to link the laws to the anti-terrorism law of the country, which has been enacted at national level. The asymmetrical relationship of the legislations at federal and provincial level may result in many infirmities in both law-enforcement and effective prosecution. The possibility of forum shopping and of hoodwinking the processes of law by the terrorists in the present state of anti-terrorism regime needs thorough deliberation and hard work. Pakistan must learn from its experiences in the area of anti-corruption laws where the asymmetrical relationship of provincial and federal legislations and organizations have given rise to more paraphernalia, but less effectiveness. There is a strong case that besides refining the constitutional aspects of legislation on anti-terrorism, the central place of organization like National Counter-Terrorism Authority (NACTA) is properly conceived and implemented as envisioned by the National Internal Security Policy. Unfortunately, the malaise of excessive and asymmetrical legislation appears to be all pervasive in this area and without putting the direction right, there are little or no chances of success.