Implications for Law and Security in Pakistan

A contentious piece of legislation ´ the Protection of Pakistan Ordinance (PPO) 2014 that was rushed through the National Assembly ´ the legislature ´ on April 7 has kicked up a nation-wide debate over its legality and implications for the country. The government now wants to put it before the Senate ´ the Upper House ´ in a session beginning on April 14. Almost all opposition parties including the Pakistan Peoples Party (PPP), the third largest in the Senate, have rejected it and vowed to resist it.

The Pakistan Tehrik e Insaf (PTI) trumped other parties two days later, when a pro-PTI lawyer Mehmood Akhtar Naqvi petitioned the apex Supreme Court (SC) against the proposed legislation calling it ‘a blow to the fundamental rights of the citizen and ‘in conflict with several provisions of the constitution. Quoting protests by major parties in the lower house and their eventual boycott of the session in which the government used its majority to pass the law, Naqvi took the plea that the PPO accords judicial powers on the administration , in contravention of the apex court 1996 decision. The right to fair trial had been snatched from the citizens, and prayed before the court to declare the ‘black law’ in direct clash with the fundamental rights provided in the federal constitution. They contend that the PPO gives license to security agencies to indiscriminately exercise their powers, but also helps them escape embarrassments or public pressures, without any fear of accountability.

Mian Raza Rabbani, who heads the PPP in the 100-strong Senate with 39 members, early Thursday spoke of his party serious reservations over the legislation and vowed to oppose it. Though divided, all parties outside the government ´ the PPP, the Awami National Party (ANP), Muttahida Qaumi Movement (MQM) and Pakistan Muslim League-Quaide (PML-Q) appear united in their opposition to the proposed legislation which they says is draconian and inconsistent with the constitution.

In a similar joint petition to the Supreme Court early this year, two other lawyers Tariq Asad, Inam-ur Rahim had maintained that several provisions of Pakistan Protection (Amendment) Ordinance 2014 were entirely identical with the Rowlatt Act which the British Colonial rulers had enforced in undivided India nearly a century ago. [1]

The Rowlatt Act was passed by the Imperial Legislative Council in London on 10th March 1919, indefinitely extending ’emergency measures’ (of the Defence of India Regulation Act) enacted during the First World War in order to control public unrest and root out conspiracy, in India. The Act had authorized the government to imprison for up to two years, without trial, any person suspected of terrorism living in the Raj and gave the imperial authorities power to deal with revolutionary activities. The unpopular legislation provided for stricter control of the press, arrests without warrant and indefinite detention without trial. The accused was denied the right to know the accusers and the evidence used in the trial, the petition had said, underlining that several provisions of the PPO were inconsistent with the fundamental rights of the citizens of Pakistan.

Background

Originally floated in October 2013, as a presidential decree the PPO can be likened to the US Patriot Act with excessive authority and powers to the law enforcement agencies in the country. It received little attention then, but has now triggered a wave of opposition.

The government had the PPO drafted in view of the violence raked up by the Islamist Taliban insurgency across Pakistan, particularly in northwestern Pakistan, that has left more than 51,000 people killed since the country became partner in the US-led war on terror in October 2001. This also includes over 5000 security personnel, more than what Pakistan lost in its three wars with India between 1965 and 1999.

What is Contentious

The Ordinance allows arrests and detentions on suspicion of threat to national security, coupled with provision of special courts and procedures for the convicts. One of the major points of contention in the PPO is the burden of proof shifting from the state to the suspect. Whereas internationally the notion of ‘innocent till proven guilty guides the justice system, the section 14 of the PPO turns it around to ‘guilty till proven innocent.’ This section alone makes the law a major violation of the Chapter 11 of the Federal constitution as well as of the international law in a country where the police is regarded as corrupt, inefficient, excessive and often the violator of the law itself.

Furthermore, Section 9 of the PPO safeguards the state for holding information regarding the whereabouts of the suspects under interrogation. Section 19 of the law takes away the right of remedy and reparations from the innocent or those wrongly convicted, as according to the section, any action performed by the security agencies in ‘good faith’ won–t be held accountable.

Lawyers maintain that several sections of the PPO that relate to lawful way of arrest based on solid evidence, right of legal help, recourse to court, protection against torture inter alia are inconsistent with certain articles of the Constitution of Pakistan such as [1]

• Article 9 which talks about one right to live with freedom (as per their own will) unless it contradicts law.

• Article 10, which deals with some of the crucial fundamentals of arresting a person. A person who is arrested or taken into custody has the right to consult a legitimate practitioner in regard to his defense. Person arrested should be presented before a magistrate within 24 hours of the arrest, and cannot be detained longer than that unless authorized by the magistrate. This however, does not apply to any person under preventive detention.

• 10 A speaks about the right to fair trial that a person holds in regard to any criminal charges filed against him.

• Article 14 provides protection against torture ; in case of extracting evidence, no person shall be subject to torture and violation of a person dignity and invading one privacy of home is proscribed

• Article 24 talks about one property rights. A person property cannot be taken into possession if it does not contradict law in any way. Nonetheless, if prevention of danger, safety measures for the public and other humanitarian issues are the reasonfor taking over somebody property then it is fair to take legal action intended for the said property.

Human rights watchdogs such as the independent Human Rights Commission of Pakistan (HRCP), says the Ordinance gives absolute power to the security forces and legitimizes ‘safe houses’ operated by the law enforcement agencies for interrogations.

I.A. Rehman, the HRCP Secretary General, says previous laws bound the security agencies to present a justification for a 90 day custody of the suspects, whereas the PPO if free of such restrictions.

Critics of the PPO further argue that the ordinance, rather than focusing on militancy and the Taliban, could be used for the raging insurgency in Balochistan. In a recent amendment through a Statutory Regulatory Order (SRO), the Interior Ministry of Pakistan gave the FIA, Police and the Balochistan levies power to take any sort of action required to tackle militancy.

The Center for Research and Security Studies (CRSS), Islamabad, also opposes a practically ‘carte blanche’ to the security forces.

Without substantive checks on action and a sense of accountability, such a law could lead to a culture of impunity within the security apparatus, CRSS believes.

Although faced with unusual levels of Taliban-led violence, yet Police and prosecution in Pakistan need complete ‘retooling’ while being empowered with excessive tools of impunity, the Center believes.

‘The country faces an unusual situation and requires unusual tools to fight the crisis of insecurity,’ Pervez Rasheed, the federal information minister told the national media Wednesday.

In a country where several hundred persons have gone missing and their cases still pending before senior courts, the PPO is considered as yet another tool of oppression and impunity. Security agencies, particularly the police and the ISI, are already prime suspects behind these enforced disappearances.

Analysts also fear that the ordinance could perhaps be a requirement by the Pakistan army in case it launched a major offensive against anti-state terrorists and Islamist militants ensconced in the northwestern mountains. Such an ordinance could help the security agencies go after the ‘miscreants’ unhindered and unchecked.

Pakistan already has an Anti-Terror Act 2013 in force, which provides the various arms of law enforcement considerable powers to hunt down and prosecute criminals and alleged terrorists.

It also provides protection to witnesses and judges in cases of terrorism, yet the government felt constrained by various legal challenges that different security agencies have increasingly faced by families of people who either go missing or are held under the Anti-Terror Act.

As a whole the PPO is a document that declares all peace-disrupting elements as ¿enemies of the state–, and states protection of life to be the state top priority. It authorizes police, Federal Investigation Agency and Balochistan Levies to take action against terrorists under the Protection of Pakistan Ordinance (PPO).

To this context, the PPO is therefore set for imminent defeat in the Senate unless the government waters it down or reaches out at least to the majority party in the Senate, the PPP with 39 members. Without the Senate approval the PPO cannot go in force. But the government, under Article 70 of the constitution, which deals with legislation, can summon a joint sitting of both houses of the parliament and get such a law passed through a simple majority of the 445- member parliament.

Despite his opposition to the PPO bill, PPP Senator Farhatullah Babar hinted at a possible compromise saying his party had decided not to move against the Protection of Pakistan Ordinance (PPO) on the grounds that it would further deplete Parliament authority.[2]

Speaking at a consultation on the issue, Babar pointed out that under the law, while the security apparatus has been given ruthless powers to shoot at sight¶a sort of judicial killing¶ and arrest and detain anyone on suspicion of being an enemy of state, the non state actors who were using Pakistan soil to unleash terrorism in other countries have been spared from punishment. [3]

Interestingly, PPP chairperson, Bilawal Bhutto also issued a warning on April 10, saying if enforced, even Prime Minister Nawaz Sharif may become victim of the PPO one day.[4]

If implemented in Toto, the law would mean that no inquiry, no accountability, no compensation and no retrieving would be possible of thousands of people who are put in concentration camps or have disappeared in Balochistan, Tribal Areas, Khyber Pakhtunkhwa or Karachi for years, and whose illegal detention has been challenged in the courts.

Although ruling party MPs tried to justify some PPO provisions by drawing on anti-terror laws in India (Tada) and the Patriot Act (USA), yet most speakers expressed serious reservations , saying the provision of special courts by appointing special magistrates amounted to encroaching upon the judiciary powers and on the other hand, authorizing establishment of military courts in a democratic system.

Zafar Ali Shah, a ruling Pakistan Muslim League leader quoted a US federal judge who, while deciding a case of three American terrorists, said: ‘When our intelligence has reasonable suspicion, we–ll repeat that he can be shot dead.’He, however, advocated for addition of provisions in the law to ensure protection of trial judges, prosecutors as 75 percent of terrorist cases are left without trial due to life hazards to them.

Text of

PROTECTION OF PAKISTAN Bill 2014

SCHEDULE

Scheduled Offences (1) : The following acts, if committed with the

purpose of waging war against Pakistan or threatening the security of

Pakistan shall be the scheduled offences and includes other offences

relating to:

(i) acts that are calculated to influence or affect the conduct of Government by intimidation or coercion, or to retaliate against government conduct;

(ii) crimes against ethnic, religious and political groups or minorities including offences based on discrimination, hatred, creed and race;

(iii) use of arson, fire-bombs, suicide bombs, biological weapons, chemical weapons, nuclear arms, plastic explosives and other materials capable of exploding or creating bombs employed to kill persons or destroy property;

(iv) use of arson and bombs on public places, government premises, sites of worship, historical places, business concerns, or other places, and risking or causing death to any person therein;

(v) killing, kidnapping, extortion, assault or attack of members of the Parliament, Judiciary, Executive, Media, and other important personalities;

(vi) killing, kidnapping, extortion, assault or attack on officers and employees of Pakistan including armed forces and law enforcement agencies;

(vii) killing, kidnapping, extortion, assault or attack on foreign officials, official guests, tourists, foreign visitors, or internationally protected persons etc;

(viii) killing, kidnapping, extortion, assault or attack on social or welfare workers, including health personnel, aid workers, and volunteers;

(ix) destruction of or attack on communication and interaction lines, devices, grids, stations, or systems etc;

(x) destruction of or attack on energy facilities including dams, power generating and distributing systems including stations, lines and poles;

(xi) destruction of or attack on aircrafts and airports, attack on flight crew with any weapon or endangering human life by means of weapons on aircrafts;

(xii) destruction of or attack on gas or oil pipelines and liquid or natural gas facilities and other means of their transport including tankers;

(xiii) destruction of or attack on of national defense materials, premises, utilities, and installations including check posts, prisons and other fixtures;

(xiv) crimes against computers including cyber crimes, internet offenses and other offences related to information technology etc;

(xv) wrecking, disrupting or attacking mass transport systems including trains, buses, cars and their stations and ports;

(xvi) violence or attack against maritime navigation, maritime fixed platforms, shipping and port installations and other maritime fixtures;

(xvii) violence against nuclear arms, sites or any other related installations;

(xviii) hostage taking, or attempting to take hostage any person;

(xix) violence against nationals occurring outside of Pakistan;

(xx) transcending or crossing national boundaries.

(2) Offences Punishable under Sections 121, 121A, 122, 123, 123A,

123B, 124, 124A, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134,

135, 136, 137, 138, 139 and 140 of the Pakistan Penal Code.

(3) Any abetment or conspiracy to commit any of the above offences