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Obsession with a bad legal tool

July 10, 2014


The writer is a director of the Human Rights Commission of Pakistan (HRCP).
The writer is a director of the Human Rights Commission of Pakistan (HRCP).

THE establishment’s aversion to a dispassionate discussion on the Protection of Pakistan Bill is quite amazing, for that way at least some of the concerns of the rights activists could have been allayed.

Nobody disputes the seriousness of the threat to the state and the government’s duty to protect its integrity. The whole debate is about the need to limit counter-militancy measures to the areas of conflict and to the enemies of the state, and to ensure that the derogation of fundamental rights does not exceed the limits prescribed by the national Constitution and international conventions.

When the Protection of Pakistan Ordinance was first issued on the last day of 2013, it targeted two categories of persons — ‘combatant enemy’ and ‘enemy alien’ — and both were liable to punitive action for waging war against Pakistan or joining the insurrection. Now the former category has been dropped — possibly to avoid liability under the laws of war — and the bill is wholly directed against ‘militants’, who include both Pakistanis and foreigners.

The draftsmen have apparently stumbled while defining an ‘enemy alien’ as a ‘militant’ who is an alien or has become one subsequent to loss of citizenship that he had acquired by naturalisation.

The safeguards inserted in Protection of Pakistan Bill are inadequate.

Since there is no mention of the alien’s involvement in war against Pakistan the provision seems to confer enemy status on any foreigner found in Pakistan. But aliens who have not taken up arms against Pakistan can be jailed under the Foreigners’ Act or deported under the Security of Pakistan Act. Why do we bring them under the Protection of Pakistan law? The problem could have been solved by including only combatants under the head of ‘enemy aliens’.

The establishment has created more doubts about its intentions while defining the ‘militant’. Five of the definitions identify a militant as one who raises arms against Pakistan or commits a scheduled offence and there is no quarrel with them. The definition of ‘militant’ that causes concern is as follows: 2. (d) (“Militant” means any person who) “threatens or acts or attempts to act in a manner prejudicial to the security, integrity or defence of Pakistan.”

Lawyers, students of law and victims of preventive detention laws are all familiar with the expressions used here. They are found in all laws authorising preventive detention because they constitute the first ground under Article 10 of the constitution for the validity of a preventive detention law.

And no words have been more thoroughly abused in Pakistan to deprive citizens of their rights, particularly their right to disagree with their rulers. This definition of a ‘militant’ has rightly fuelled apprehensions of attacks on basic rights and freedoms, especially among political dissidents in Balochistan and Sindh.

Another serious objection to the new enactment relates to the power allowed to armed forces, police and other civil armed forces to fire upon suspects. After much hassle it has been decided that only BS15 or higher ranked police officers can order firing. But no such conditions have been attached to army soldiers, Rangers, FC, and Coast Guards. The omission is quite unfair.

Besides, the point that has been missed during the debate on this provision is that it is not so much the rank of the officer who orders a firing that matters as the necessity of consultation with a judicious mind. Can the power to shoot at people be given to functionaries notorious for ‘encounter’ killings?

Further, the safeguards inserted by the Senate are inadequate. If an incident of firing results in death or grievous hurt, an in-house inquiry will be held. Few Pakistanis will buy this safeguard. In special circumstances, the federal government may order a judicial probe. If the lawmakers had due respect for the lives of their compatriots they could have recalled the existing law on the subject and made judicial inquiry in each case of death by LEA firing mandatory.

A most offensive provision of the bill is its Section 5 which gives retrospective protection to the arrest or detention of any person by the armed forces or civil armed forces before the PPO of 2014 was issued. This extraordinarily perverse provision legitimises the arrest and detention of all those people whose custody has for years been denied. Is anybody surprised at the strong reaction in Balochistan? Equally reprehensible is the legalisation of unauthorised detention centres /safe houses.

The unusual provision that allows the government to amend the schedule to the bill might be defended on the ground that the Anti-Terrorism Act has a similar section. Apart from the fact that bad precedents are better forgotten, the matter deserves the lawmakers’ serious attention.

Making changes in the schedule, especially the addition of new offences, will amount to legislation and that function cannot be delegated to the executive. What will happen if the government adds petty breach of peace to the schedule? The courts will of course strike that down. But leaving lacunae in legislation uncovered amounts to shoddy lawmaking. What about the suffering caused to the people before judicial intervention?

It is true that the bill finally adopted by parliament is not as bad as the one passed earlier by the National Assembly. This is no proper way of judging any law. A new law must stand on its intrinsic merit, its harmony with constitutional imperatives and international obligations, and its fair enforceability by the existing mechanisms. Otherwise the addition of a mild safeguard could make the Punjab Murderous Outrages Act of 1867 and the Rowlatt Act acceptable.

The establishment’s obsession with this particular measure and the efforts made to somehow push it through suggest that the executive’s desire to acquire a deadly tool has proved to be more decisive than the logic underlying the proposition. A bad omen for the defenders of the rule of law and civil liberties.

Published in Dawn, July 10th, 2014