Desperate times; desperate measures!
Pleading Erasmus’s Latin adage “Malo nodo, malus quærendus cuneus” (desperate times call for desperate measures), the government is bent upon pushing through the Protection of Pakistan Ordinance (PPO) 2013. Unfortunately, the hurriedly drawn Ordinance, which passed the touchstone of the lower house of the parliament since the ruling party enjoys majority, is likely to face impediments at the Senate, before it becomes a law.
Changes recommended in the PPO leading to the PPO (Amendment) Ordinance 2014 is an outcome of the ruling of the Supreme Court of Pakistan in the Human Rights Case No. 2338-K of 2013 viz the “Mohabbat Shah Case”. Terming the disappearance of 35 persons from the Internment Center at Malakand as “these apparently Kafkaesque workings of the concerned authorities”, the august Supreme Court of Pakistan observed that the principles of customary international law codified in the UN General Assembly Declaration on Enforced Disappearances 1992 and the Convention against Enforced Disappearances 2006, even though not ratified by Pakistan, would be applicable to Pakistan as enforced disappearances are a crime against humanity and violate Articles 9 and 10 of Pakistan’s Constitution.
The Supreme Court opined that it would have been wiser to amend the Anti Terrorism Act 1997 [as amended vide ATA (Second Amendment) 2013 (Act XX of 2013)], if required, or preferably to strengthen agencies, charged with prosecution of those accused of the scheduled offences rather than creating a new controversial law which attempts to remedy the failure(s) of the prosecuting and policing agencies by granting the same unfettered discretionary powers in terms of arresting and searching suspects without warrants, conducting trials in secret and meting out harsher punishments.
The preamble to the PPO rationalizes that under the new law, it would be expedient to provide for protection against ‘waging of war’ against and threats to the security of Pakistan and to provide for the speedy trial of offences falling within the Schedule to the PPO. Their argument is that the miscreants, who are supposed to be brought under the ambit of the PPO, are ruthless killers, totally oblivious to human rights, thus they deserve no compassion.
Let us examine some of the apparently harsh clauses. Section 9A(2014 A) authorizes the exclusion of Public from Special Courts for prosecution. All over the world, the burden of proof rests with the prosecutors but a citizen arrested under the PPO will be considered guilty unless he proves himself innocent. Section 17 provides no recourse to High or Supreme Court. Section 3(2a) allows the armed forces and civil armed forces to fire upon any person against whom they are authorized to use force. Section 3(2)(b) authorizes officers of the police, armed forces and civil armed forces to arrest without warrant a person who has committed a scheduled offence or against whom a reasonable suspicion or credible information exists of having or being about to commit a scheduled offence. Section 3(2)(c) allows the members of the armed forces, civil armed forces or police to enter and search, without warrant, any premises to make arrest or to take possession of any property, etc., used or likely to be used in the commission of scheduled offences. According to section 5(5) of the PPO a person whose identity cannot be ascertained shall be considered an ”enemy alien” and presumed to be waging war against Pakistan. The persons under enforced detention and disappearance will be legitimized with retrospective effect. It also enables the government in the interests of security of its personnel to withhold information regarding the location of the detainee or accused.
Human rights activists and the opposition parties are labelling the PPO and its amendments as draconian. They consider the laws to be too open ended, which in the hands of trigger happy or vindictive law enforcing agencies are likely to be misused and will give rise to forced disappearance and extra judicial killing. The law does not make provisions for mistakes by the LEA.
It is imperative to revisit the law and bring balance in it. The broad spectrum definition of terrorism should be narrowed. It should not be applicable to the civil armed forces. The powers to arrest and search without warrant should be curbed along with the powers of firing upon suspects on “reasonable apprehension.” Preventive detention should be made subject to Review Boards as per provisions of Article 10 of the Constitution. Public trials should be allowed while it should be compulsory for the accused to be informed of the charges against them and it should be incumbent upon the authorities to release the information regarding the location of detainees. The burden of proof should be reversed, making it essential for the prosecuting agency to provide proof of guilt. Retrospectivity of the PPO should be removed. These amendments will perhaps make the PPO more palatable and appear less desperate.