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Two debatable draft laws

October 18, 2018

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I.A. Rehman
I.A. Rehman

PARLIAMENT is currently seized of two significant bills, one for punishing the crime of causing enforced disappearance and the other for the trial of blasphemy and other offences under the cybercrime law. Both demand thorough deliberation.

The first draft law, the Protection against Enforced Disappearances Act, 2014, is meant to replace the Commission of Inquiry into Enforced Disappearances with a somewhat more effective tribunal. This bill was obviously drafted in 2014. Although this gives us an idea of odd government priorities, let that not detain us.

The bill criminalises enforced disappearance, something the UN agencies and national human rights organisations have been demanding for years. Imprisonment for up to 10 years is prescribed for causing an enforced disappearance.

The comprehensive definition of ‘enforced disappearance’ has been taken from the international convention on the subject. It means “any act of arrest, detention, abduction or any other form of deprivation of liberty, committed by agents of the state or by persons or groups of persons acting with the authorisation, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such person outside the protection of law”.

The bills pertaining to enforced disappearances and blasphemy need to be carefully scrutinised.

Complaints of enforced disappearance will be heard by a tribunal that the federal government will constitute in consultation with all the four provincial governments. The tribunal will trace the disappeared ones, fix responsibility for the offence and refer cases to the sessions courts for trial. It will also have the power to determine and order payment of compensation to the victims of enforced disappearances.

Complaints to the tribunal can be filed by any person subjected to enforced disappearance, or any person related to, or any person or organisation having knowledge of the victim.

While all this sounds good there are quite a few points that require due consideration and improvement.

The proposed law will come into force with immediate effect but the tribunal clause will come into operation only when the government issues a notification. How will the law come into force without the creation of the tribunal? This superfluous section offers the executive an excuse to delay the law’s enforcement. And why should the tribunal not have the power to try the offenders?

The tribunal will comprise four members, one each from the four provinces, all of them to be appointed by the federal government, in consultation with the provincial governments. One of them will be a retired judge of the Supreme Court and he will be the tribunal’s chairman. This is quite confusing. A simpler formulation could envisage a five-member tribunal, four of them nominated by the provincial governments and the federation selecting the chairman. And why is Gilgit left out?

The tribunal will release six-monthly reports. It may issue quarterly reports if the present commission’s practice of circulating monthly reports cannot be continued.

Quite undesirable is the section under the eye-catching subheading ‘Truth and Reconciliation Commission’. The commission will be able to recommend immunity from prosecution for persons who fully disclose their culpability. This section needs to be completely revised to facilitate speedy reconciliation with the communities that have borne the brunt of enforced disappearances.

The other bill that has been before the Senate for some time seeks to amend the Pakistan Electronic Crimes Act. There are reports that the government wants to withdraw the bill on the tenuous ground that it was drafted by the previous government. Even if it is taken back the bill needs to be examined as its drafting and withdrawal throw light on the lawmakers’ mindset and the locus of power.

The most significant amendment proposes death as the punishment for false accusation of blasphemy against the Holy Prophet (PBUH), that is, the same punishment that is provided for the offence.

The bill aims at adding two sections to the act, after Section 22, that deals with child pornography. One prescribes imprisonment for up to four years and a fine of up to Rs3 million for the production and sale of pornographic material, and imprisonment for up to three years and a fine of up to Rs2m for distribution of pornography. These changes are non-controversial.

Then the bill adds six clauses to the act — 27-A, 27-B, 27-C, 27-D, 27-E, and 27-F that deal with: dissemination of content outraging religious feelings of any class by insulting its religion or religious belief; defiling etc of a copy of the Holy Quran; blasphemy in respect of the Holy Prophet (PBUH); derogatory remarks etc in respect of holy personages, such as the Prophet’s wives, family members and his companions; misuse of epithets, descriptions and titles etc of certain holy personages and places; and an Ahmadi calling himself Muslim or preaching or propagating his faith, respectively. All six offences are included in the Pakistan Penal Code under sections 295 A, 295 B, 295 C, 298 A, 298 B and 298 C respectively.

There is no need for putting these offences in the Electronic Crimes Act as they can be tried under the Pakistan Penal Code. If any clarification were needed the use of an information system could be added to the PPC provisions. The legal authorities are aware of complications that arise when an offence is mentioned in two different laws (such as the PPC and Anti-Terrorism Act, for instance).

Finally, clause 27 G provides death and three years imprisonment for the offences under 27 C (295 C of the PPC) and 27 D (298 A of the PPC) respectively. This clause again will cause complications as it is not included in the PPC. It is also in conflict with the Criminal Laws (Amendment) Act of 2017 which provides for seven years’ imprisonment for false information about an offence punishable by death. If the addition of this section is at all necessary a proper way would be to redraft the PPC chapter on offences relating to religion.

Published in Dawn, October 18th, 2018