Imagine a scenario: a police official stops a commuter on a security picket and asks the commuter for an identity check. The commuter reaches out for his wallet in his pocket but the official doubts he will pull out a gun and shoot him instead. In a pre-emptive move, the official shoots the commuter dead.
Will this be called a murder or an act done in good faith or self-defence?
Many people think the shooting officer will go scot-free if he is in Grade 15 or above as these powers and impunity have been granted to him under the recently passed Protection of Pakistan Act (PPA) 2014. The objective of the law as stated in the draft is "to provide for protection against waging of war against Pakistan and the prevention of acts threatening the security of Pakistan."
The ordinance (PPO) which created controversies and heated debates in the past has been approved after some amendments but there still are a lot of apprehensions against it. The law which will remain in force for two years also gives law enforcers an authority to arrest a person and enter a property without warrant. The Joint Investigation Teams (JITs) formed under the law will have the right to withhold information of a detainee except from a High Court or Supreme Court. The burden of proof to prove innocence will lie with the suspect, mobile phone records will be considered as admissible evidence, there will be special courts not accessible to public, it would not be binding on the investigators to tell the suspects about the charges against them and an "enemy alien" will be dealt with strictly.
Apparently, most of the political parties have not resisted this law strongly in a show of solidarity with the armed forces which is launching an operation against terrorists in Pakistan. But there are quarters that fear its gross misuse by law enforcing authorities, especially in civilians-occupied settled areas, and call it an anti-human rights law.
Lala Hasan, a lawyer and human rights defender based in Islamabad, believes the PPA curbs the basic constitutional and fundamental rights of citizens to fair trial and right to security of a person. His point is that how can a person arrested merely on apprehension," prove his innocence if he is denied bail and not briefed on the very charges levelled against him.
Amid apprehensions, the supporters of the law claim necessary safeguards have been incorporated in the amended law to avoid abuse of power and ensure protection of fundamental rights. For example, the convicted individuals will have the right to appeal against their convictions before a high court, a suspect will be produced before a judicial magistrate to get his remand, death of a suspect will be subjected to a judicial inquiry instead of an internal inquiry and so on.
All this looks good on paper but very difficult to put into practice, says a former police officer, with a background in human rights studies, on conditions of anonymity. He tells TNS criminal justice system works on the principle that a person is presumed innocent until proven guilty. But under the PPA, a person will be presumed guilty until he proves himself innocent, he adds.
The former officer believes the federation is trying to trespass its limits as law and order is a provincial subject under the 18th amendment. He believes there was no need to pass this law. "The Anti-Terrorism Act (ATA)," he says, "is already there and it defines a terrorist in detail and talks about the admissibility of forensic evidence in courts."
He is not ready to buy the argument that there is enough room for judicial oversight. His point is that the police will get extraordinary powers to detain people without arrest warrants and habeas corpus petitions will become useless. It will be an easy way out for the police to satisfy bailiffs by saying that the detainees were held under the PPA. "There is no use enacting new laws when the legal system is not supportive -- terrorists’ acquittal rate being around 98 per cent. It seems the law is passed with the prime objective to legalise forced disappearances."
Asad Jamal, a Lahore-based lawyer, believes the amendments to the law have not made any substantial difference. The anti-human rights clauses are there and draft of the law is as vague as it was earlier which makes it hard for one to understand. "The law is constitutionally challengeable as it allows forced disappearances and shoot and sight powers which have been declared unlawful by the SC in Mehram Ali case in 1998."
Jamal says what is of utmost concern is the fact that swaying powers have been given to police which have an extremely bad record of human rights abuses. There is no evidence that police officers of higher rank are more honest and responsible. "If this was the case, then why was the massacre at Minhaj-ul-Quran secretariat carried out directly under the supervision of an SP?"
He says the detention period has been brought down from 90 to 60 days which is no big improvement. "The concept of "enemy alien" is also vague and the inhuman treatment he will have to go through cannot be approved of. Even if he is a suspect, his undisclosed and indefinite incarceration is a violation of his universal fundamental right to protection against torture."
Ahmer Bilal Soofi, a senior lawyer, says though the PPA is not a perfect attempt there is a legal space for such laws in a country in a state of war. Article 245 of the Constitution approves this and Section 4 and Section 5 of ATA talk about conflict laws, he adds. He says the law shall be restricted to specific areas and should be applicable under certain conditions. On feared human rights violations, he says in conflicts and conflict-like situations constitutional orders come to a pause and there is need to take special measures to control the situations.
He says though the law has been approved, safeguards against abuse of power can be incorporated through rules and regulations which are yet to be formulated.
The passage of PPA 2014 has also given nightmares to internet users and social media activists. Nighat Dad, an internet rights activist and director of Digital Rights Foundation, tells TNS that cybercrimes and offences related to information technology have been included in the list of scheduled offences which carry punishments of up to 20 years in jail.
The law, she says, clearly inhibits fundamental rights to freedom of speech, privacy and peaceful assembly on the internet and makes them non-bailable offenses. To her, the provision regarding internet crimes is so vague that it can be abused against journalists, politicians, minorities, students, activists, political dissidents and groups who are using the internet for activities which would not in any way be counted and ascertained as terrorism.
Makhdoom Waseem Qureshi, Central Secretary Information, PML-N Lawyers’ Wing defends PPA 2014 saying a common man must not feel threatened as it is not meant for him. The reason why people are apprehensive, he says, is that people do not have trust in police and other law enforcing authorities. He says it is the responsibility of the government to make police accountable and surely it will do that.
"The PPA would have been a better document if the focus had been on improving the criminal justice system and conviction rate of terrorists," says Asad Jamal.