The garrison state

Published December 28, 2013
Security personnel inspect a gas pipeline blown up by militants in Balochistan.
Security personnel inspect a gas pipeline blown up by militants in Balochistan.
A view ot the shutter-down strike in Sindh on October 30
A view ot the shutter-down strike in Sindh on October 30

On October 20, the federal government issued the Protection of Pakistan Ordinance 2013, “to provide for protection against waging of war against Pakistan and the prevention of acts threatening the security of Pakistan.”

Following the promulgation of the ordinance, some nationalist parties in Sindh observed shutter-down strikes on two occasions: on October 30 and November 20, the first of which was accompanied by a series of low-intensity bomb explosions in many cities across Sindh, including Karachi and Hyderabad.

One of the reasons for such disquiet is that the law is seen as a tool for persecuting political dissidents.

Ostensibly, the government has promulgated the ordinance to strengthen the hands of the Pakistan Army and intelligence services in dealing with terrorists — something security agencies have been demanding for years.

Putting the burden of proof on the accused, the ordinance gives wide powers of arrests and investigation to the security personnel while at the same time relieving them of the cumbersome task of putting together evidence against anyone that they arrest and interrogate.

On November 7, the government placed the ordinance before the National Assembly, where it still awaits passage. Parties in the opposition, mainly the Pakistan Peoples Party (PPP), have vowed to oppose it. So have many human rights groups and activists.

The ordinance aims to address the peculiar security situation Pakistan is in. Yes, claims the government.

The ordinance was ostensibly issued after the government faced repeated reprimands from the Supreme Court over its failure to improve law and order in different parts of the country, especially Karachi and Balochistan.

Subsequently, in an attempt to explain its own actions, the preamble of the ordinance states: “…Pursuant to the directions of the Hon’ble Supreme Court in cases of civil disturbance in different parts of the Country, it has become imperative to promulgate a law.”

But the government chose to issue the law as an ordinance, rather than as an act of parliament, apparently for two reasons: first, because a parliamentary legislative process is time-consuming since it requires proposed legislation to go through a multi-tiered procedure of scrutiny and debate — first, in standing committees and then within both houses of parliament; and second, because the government feared that the opposition in parliament, which occupies a majority of seats in the Senate, would block the passage of the law.

“Apparently the government thought that there was an urgency to bring out this law as an ordinance,” says Farogh Naseem, a senior lawyer and a Muttahida Qaumi Movement senator.

The parliament was not in session so the ruling party found it convenient to promulgate the ordinance without having to wait for its passage through the normal process of legislation, he adds.

Other legal experts say the ordinance is aimed at addressing new types of violent acts, prosecution for which is not provided for in existing laws.

“This ordinance accommodates latest developments in the internal security situation of the country and it covers offenses which are not provided for in the Pakistan Penal Code (PPC) or any of the existing terrorism-related laws,” says Basharatullah Khan, a Rawalpindi-based lawyer who regularly appears as counsel in cases of terrorism.

For instance, he says, the earlier laws on terrorism do not cover attacks on military installations and target killings mainly because these two trends originated much after 1997, when anti-terrorism laws were first promulgated. “[Such] latest developments are covered in this ordinance,” says Khan.

The ordinance incorporates offenses, including attacks on gas and oil pipelines, taking place mostly in Balochistan, kidnapping and extortions, which have been reported most frequently in Karachi and some parts of Sindh, and attacks on foreigners and foreign guests, reported most frequently in the northwestern part of the country.

Other legal experts don’t see the emergence of new types of crime as a reason for the promulgation of a new law.

Naseem says the ordinance, in fact, was not required at all. “Everything is provided for in the PPC and existing anti-terrorism laws,” he says and adds that the offenses that are not covered therein can be provided for by amending existing laws.

The ordinance will be misused for political purposes. Yes, argue critics.

As for parliamentary opposition to the ordinance, senior PPP senator Raza Rabbani has made it clear that the new law is completely unacceptable to his party in its current form.

It usurps the rights of citizens and gives excessive powers to intelligence agencies and security forces, he is reported to have said.

Khan, the Rawalpindi-based lawyer, agrees that the ordinance substantially curtails due judicial and legal process.

“Under its provisions, the burden of proof lies with the accused; once someone is arrested under the provisions of the ordinance, they will have to prove that they are not involved in any incident of terrorism. Under ordinary law, an accused is innocent until proven guilty. Under the ordinance, the accused is guilty unless proven innocent,” he says.

This may easily lead to arbitrary arrests and prosecution of all those activists whose political activities are seen as national threats by security and intelligence agencies.

Many in Sindh already fear that the ordinance could lead to a replay of the political oppression carried out in Sindh in the 1980s under the martial law regime.

“We hope that this will not be a replay of what happened in Sindh during the MRD [Movement for the Restoration of Democracy],” says Ayaz Latif Palijo, head of the Sindh Awami Tehreek which, so far, has not taken part in protests against the ordinance.

In order to remove misgivings about the ordinance, says Palijo, “Government officials should have come to interior Sindh and should have held public hearings on this law.”

Those who support the ordinance say there are activities taking place in the country that need to be curbed but that the government cannot do anything about them because those involved in such activities enjoy protection under the law of the land.

Akram Sheikh, a senior Supreme Court lawyer considered close to Prime Minister Nawaz Sharif, believes that “the gist of the ordinance” is that it deals specifically with “enemy aliens and a person who joins hands with the enemy aliens” and its objective is to deprive such persons the protection they may otherwise have under normal laws. “

Those in possession of weapons to bring down aircraft cannot be given the protection available to Pakistani citizens,” he argues.

But Sheikh is optimistic that the ordinance will not lead to human rights abuses and political victimisation. “[It] specifically deals with enemy aliens and has nothing to do with Pakistani citizens,” he says.

In his opinion, the language of the ordinance is so specific that it will not be vulnerable to as much political misuse as some earlier laws. “The Anti-Terrorism Act (ATA) 1997 was thoroughly misused by the administration.

Even ordinary crimes were tried under the ATA,” he says and adds that, by misusing the anti-terrorism law, “the administration rendered it ineffective”. This, he hopes, will not be the case with the Protection of Pakistan Ordinance.

Sheikh, however, is quick to point out that there cannot be any watertight guarantees against the misuse of any law unless these guarantees are spelled out in the law itself. This, according to him, is what the ordinance does not have and, therefore, “there is no guarantee that this ordinance will not be misused by the administration”.

A new security situation demands a new and specialised judicial system. Not really.

Some proponents of the Protection of Pakistan Ordinance argue that it has been promulgated not so much for covering new types of crimes as for providing for a new judicial system.

This is the point of view held among officials at the federal law ministry, responsible for drafting the ordinance.

They say that the ordinance has been issued to provide for a special judicial set-up, where speedy trials of persons accused of terrorist activities could be held.

A speedy trial is not a possibility, says one of the officials on condition of anonymity, within the existing judicial system, which is overburdened with cases and encumbered by lengthy procedures.

Khan concurs. If existing laws were amended to cover offenses that they do not cover at the moment, pertinent cases would still go to the district and session courts for trial, he says. “These courts are already overburdened,” he says.

The government, therefore, thinks that new types of crime require special legal and judicial arrangements, he says. “Such special legal arrangements cannot be provided for by amending the PPC or ATA.”

But there already exists a special judicial and legal set-up for speedy trials — anti-terrorism courts set up for crimes covered under ATA.

So, why should the country need yet another special judicial and legal set-up?

“It will be time-consuming and a wastage of resources to have a fresh judicial set-up under this ordinance,” says Khan.

“New staff will have to be hired for special courts and a new venue will have to be made available for them,” he says.

He offers a simpler alternative. “The prosecution for new offenses could have been provided for under the existing anti-terrorism laws. This would have saved the government from having to make new arrangements for implementing the ordinance,” he argues.

The ordinance will help Pakistan fight the war it is facing. Perhaps. Wait for implementation, though.

The word “war” is repeatedly used in the text of the ordinance to describe the country’s internal security situation.

Senior lawyers, therefore, point out that in that the Protection of Pakistan Ordinance is akin to other laws implemented in the past to deal with extraordinary threats posed to the security and the survival of the state.

Under all these laws, citizens did not enjoy human rights otherwise guaranteed by the Constitution, including the right to a fair trial and the right to due process when facing law enforcement agencies and the courts.

Critics also argue that the government machinery’s implementation of the ordinance on the ground will determine how much it impinges upon human rights and affects the overall political situation in the country.

Khan expects that implementation of the ordinance will necessitate a judicial review, which may help smoothen some of its sharp edges.

It is likely to be contested in the high courts as well as in the Supreme Court, he says, following which, the superior courts will interpret it in their verdicts, clarifying its scope and limitations.

But the process will take a lot of time. “It will take at least three to four years before the parameters for such a law settle down,” says Khan.

He explains how the superior courts struck down provisions of the ATA, under which confessional statements made before the police were viewed as evidence admissible in a court of law.

The court may take a similar view of some of the provisions of the ordinance or the whole of it and only this will determine the extent to which the ordinance is able to bypass constitutional and legal guarantees on human rights.

On to the courts once more, then — but before the judges are able to produce their judgments, expect more strikes and explosions in different parts of Sindh, in particular, against the ordinance.

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