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Questionable law

October 31, 2013

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THE prime minister has done well to seek the opposition parties’ support for parliament’s endorsement of the Protection of Pakistan Ordinance. It would have been better if he had also sought the opinion of independent and fair-minded legal authorities on the measure.

The title of the ordinance reminds one not only of the Security of Pakistan Act of 1952 (and the inglorious ordinances it replaced) but also of the Defence of India Rules of the Second World War days.

It ostensibly provides for protection “against waging of war against Pakistan” but the rationale for the legislation has not been spelt out. The fact that the ordinance will take effect on a date appointed by the government, unlike most ordinances that are enforced with immediate effect, and may be enforced piecemeal, does not suggest urgency for its promulgation.

Why was it not possible to wait for parliament’s session when the Senate was due to meet only a week later and the National Assembly another week after it?

True, there are people who have been waging war against Pakistan for quite some time but they have to be confronted on the field of battle and not merely through security laws. As for dealing with the enemy’s helpers and agents on our side of the line of conflict, the laws are already there.

Only a few days before the present ordinance was issued the Anti-Terrorism Act had been tightened up. Provisions relating to ‘enemy aliens’ could have been added to that ordinance, just as the Security Act of 1952 had provided for the expulsion of undesirable aliens.

A statement released by the presidency on the night the ordinance was issued made a loose reference to the need for prescribing stiffer sentences for offences listed in the Penal Code chapters VI and VII because offenders were getting away with light fines.

So each offence mentioned in the schedule to the ordinance shall now be punishable with imprisonment for up to 10 years, and with fine and confiscation of property “unless the scheduled offence already provides (perhaps ‘carries’ is what is meant) a higher punishment”.

The fact is that half of the 14 offences against the state listed in chapter V are already punishable with imprisonment for 10 years. The offences in chapter VII (offences relating to the armed services) do carry lighter punishments, and one of them is punishable with a fine of Rs1,500 only, but the Penal Code provisions do not apply to persons that can be tried under the Army, Navy, and Air Force Acts.

In any case heavier punishments for the scheduled offences could have been provided through the oft-used device of a criminal law amendment.

What makes one suspicious of the present measure is its unusually broad sweep. It envisages the creation of special courts and a special prosecution agency (headed by a separate prosecutor-general) — a parallel system of criminal justice the authors of anti-terrorist laws have been hankering for since 1990.

The objections to such initiatives are too well known to need repetition here. The government must answer the question as to why the money to be spent on new courts and prosecutors could not be used to increase the number of judicial officers and otherwise strengthen the normal judicial system, something the judiciary has been demanding for many years.

Some of the provisions of the ordinance need to be critically tested for possible conflict with the basic notions of a fair dispensation.

These include giving the armed forces/civil armed forces the powers of the police and the power to fire on suspects, all investigations to be done by joint civil/army teams, appeal against the judgement of a special court only to the Supreme Court (eliminating an appeal to a high court), and detention of convicts at any place other than the regular prisons.

The ordinance refers to ‘enemy aliens’ — those attacking the state and armed forces and unable to prove their Pakistani citizenship — an expression that may create an impression that only foreigners challenging the state are to be netted.

The text of the ordinance does not support this view. The scheduled offences include “acts that are calculated to influence or affect the conduct of government by intimidation or coercion”, “offences based on discrimination, hatred, creed and race”, “transcending or crossing national boundaries”, and “internet offences”, all these “if committed with the purpose of waging war against Pakistan”.

Who will decide that such imprecisely defined offences amount to waging war on Pakistan? We know that similar provisions of the law have been used to target trade union leaders, lawyers and students who were exercising their constitutional rights to assembly and protest. The fear that the ordinance could be used against the Baloch or other nationalist dissidents cannot be dismissed.

The ordinance has apparently been drafted without due deliberation. The scheduled offences include offences mentioned in Section 139 of the PPC.

This section does not refer to any crime; it only says that nobody subject to the army, air force and navy acts is subject to punishments in this chapter of the PPC. One offence is “violence against nuclear arms.” How does one commit such an offence?

The government needs to realise that even laws meant to deal with threats to national security must be drawn up precisely and within the framework of legal propriety and must not violate the basic human rights. Vague and broadly defined laws can easily be abused by ill-trained and irresponsible functionaries that our system unfortunately sports in abundance.

The members of parliament must ensure, when the measure comes up for approval in the houses of parliament, that no one, neither a Pakistani nor a foreigner, is denied a fair trial and due protection of the law.