This is the first of a two-part article on rape culture, how it exists in Pakistan, and how it can be dismantled

Once again, the country is wracked with anger and shame over the gang-rape and murder of a girl in Layyah. The incident occurred less than a month after the brutal public murder of Farzana Parveen. (See Bolo Bhi’s blog on the murder of Farzana Parveen here) This should not come as a shock considering the high rate of violence against women (VAW) in the country. What’s disturbing is the similarity between the case in Layyah, and that of a case in India, where two minor girls aged fourteen and fifteen were raped, and unable to face the “shame” of being rape survivors, decided to hang themselves from a tree. It is highly unlikely, though, that such an incident has never occurred before in Pakistan, considering that most crimes against women are not even reported, and women are urged to keep silent to protect “family honor.”

But we have nothing to worry about, of course. Because rape is something that happens accidentally, so sometimes it is wrong, and sometimes it is right. You see, boys will be boys at the end of the day, and if a girl accuses her ex-boyfriend of rape, should the boy be hanged for a little mistake? At least, that is what Indian Ministers have to say about rape. That it’s an accident that is sometimes right, and that it happens because “boys will be boys.” Following that line of thought, we could assume that perhaps, the four men who raped the Layyah victim ‘accidentally’ decided to gang-rape her. Perhaps in their panic over their “mistake”, they accidentally strangled the victim and didn’t realize they were killing her. Perhaps they panicked even more – being boys, after all- and then decided to make it look like a suicide.

It is not enough to simply outrage over individual incidents. We need to ask ourselves, why? Why does such a culture of impunity exist within our society? The statements of Indian ministers about rape may not be regarding Pakistan, but you do not have to look far to find such examples at home. So the question arises; why? Why do the statistics grow by the year, instead of decreasing? Why are laws to protect women ineffective or not implemented at all? Why are people so apathetic to crimes against women until one case out of hundreds is pounced upon and highlighted by mass media?

Rape culture. It’s a word you don’t often hear in a Pakistani context. When you do hear it, it’s in a confused, garbled narrative where those discussing rape culture think that it means that all women are rape  victims. And what exactly is rape culture? Definitions tend to be framed around a white, first-world Western perspective, but can be adapted to our third-world Pakistani context as well.

Rape culture is treating rape as something that happens because of where you were, or what you were wearing, or what time of the night it was. Rape culture is the time my tenth grade Chemistry teacher told a class of 25 female students that they could never be brave enough to stand on the street at 10 pm because they’re girls. Rape culture is claiming that laws against domestic violence push a “western” agenda, and deny men the “right” to beat their wives.

Rape culture is victim-blaming, as if a woman chooses to have her body violated. Rape culture is telling survivors of rape that they have destroyed the family honor. Rape culture is burdening women with the honor of their entire family. Rape culture is burdening women with family honor because a woman is her father’s property, and then her husband’s property. Rape culture is lack of rape kits and forensic labs because conducting tests to prove that a woman has been raped is not only unimportant, it is also considered un-Islamic. Rape culture is Islamic councils persisting in the claim that if a child hits puberty, they can be married. Rape culture is treating women as property to the point of “exchanging” brides in tribal customs because “If the family, we marry our daughter into gives us one of their women, then they will treat our daughter well for fear that we would mistreat their woman.” Rape culture is suspecting a woman has ‘illicit relations’ because she’s seen talking to a man. Rape culture is killing women because they were dancing or talking on a mobile phone, because a mobile phone serves no other purpose than to facilitate women with loose morals who conduct affairs with men and bring shame to their family. Rape culture is a woman being of loose morals because she works, talks to men, has a boyfriend, or goes out at night. Rape culture is your father telling you that you can’t go out at night with your female friends because if someone he knows sees you, “what will people say?”

Rape culture is throwing acid on a woman’s face because she refused your marriage proposal. Rape culture is slaughtering your cousin’s three children because she refused to marry you. Rape culture is corrective rape of a lesbian because it isn’t homosexuality, “she just hasn’t met a real man yet.” Rape culture is discriminating against the LGBT community to enforce and strengthen the heteronormative patriarchal structures of society.

Rape culture is the refusal to teach a child sex-Ed because not only is sex shameful and dirty, but children must not be allowed to learn about sexuality. Rape culture is parents sending their daughters to girls-only schools because boys are uncontrollable animals who see a female and immediately want to violate her. Rape culture is a male classmate looking at a girl wearing capris and a fitted shirt and saying, “Where’s her dupatta?” Rape culture is his female friend refusing to admonish him, and playing along by saying “she forgot it at home.” Rape culture are the memes or social media updates about Pakistan “raping” India because the former won a cricket match, and a sports victory indicates the strength of your masculinity which must further be reinforced by references to raping the opposing team.

Rape culture is the rape joke that makes survivors of assault flinch and cringe and suffer from traumatic flashbacks. Rape culture is the rape joke that taps into every woman’s greatest fear, and makes a mockery out of the violation of a woman’s body and her very being. Rape culture is calling women over-sensitive for taking offense at a rape joke, and thereby delegitimizing a woman’s experience and trauma.

Rape culture is bro culture, where men support each other in sexism and misogyny because “bros before hos.” Rape culture is young women assimilating into bro culture because it is easier to live as a woman who perpetuates discrimination against her own sex, simply for the sake of earning men’s acceptance and validation. Rape culture is when men have sex because “boys will be boys” but if a woman has an active sex-life, she’s destroying her life.

Rape culture is using the violation of a woman’s body as a tool for ethnic cleansing or a weapon of warfare. Rape culture is women being harassed when they go to file an FIR after being raped, with police treating them like they “asked for it”. Rape culture is the dehumanization of sex workers. Rape culture is the claim that a woman who sells her body to make a living cannot be raped and deserves no rights. Rape culture is denying the existence of marital rape. Rape culture is a marriage contract that asks if the bride is “a maiden/virgin, a widow, or divorced.” Rape culture is a religious cleric crossing out the clause of the marriage contract in which the husband gives his wife “permission” to divorce him because a woman shouldn’t have the right to divorce. Rape culture is young women being honour-killed” for singing and dancing at a mixed gathering. Rape culture is the prevalence of tribal customs which insist that a woman who dances or sings in front of men has dishonoured her family/tribe and must be killed. Rape culture is a television anchor harassing a rape survivor on live television, within hours of her assailants being acquitted.

Rape culture is that when Dr. Shazia Khalid was raped, she was pressured into leaving the country because the ruler of the country was a military dictator who wanted to protect the soldiers who raped Dr. Khalid. Rape culture is when that same military dictator went on to say in an interview, “Nowadays they say in Islamabad, if you want to get a Canadian visa and make millions, get raped.” Rape culture is the dictator going on to say, “Who knows with Dr. Khalid, maybe it is the same case of making money.” Rape culture is when the dictator denies ever making such heinous statements, rather than apologizing for such vile claims. Rape culture is years later, a woman self-immolating because she cannot get justice for her rape, and still being treated as a joke.

Rape culture is a young girl being gang-raped, but being frightened into dropping her case within 24 hours. Rape culture is the reasons that the girl dropped her case; that a prominent politician who came to the police station to see her, named the survivor on live television, as well as calling her “rude and hyper” because she’s too traumatized to say anything. Rape culture is the politician mentioning that the man who brought the survivor to the station lives with her as her roommate, and stating that “this is her version of the story.” Rape culture is the reporter who loudly said mashallah in a sarcastic tone when the politician stated that the survivor said she did not want notoriety. Rape culture is two newspapers publishing the name of the survivor, as well as  where she lived, her friend’s name, and the personal fact that she lived with her boyfriend. Rape culture is the assumption that the survivor was a ‘prostitute’ (because if a woman sells her body, then she’s asking to be raped) or painting her male friend as her pimp. Rape culture is the lack of justice because the assailants were from elite, influential families.

Rape culture is wrong. There is no black or white in this situation. There will never be a way to justify rape culture, not in the name of religion, not in the name of honor, not in the name of social values, not in the name of tradition. But in actuality, rape culture is justified. It is justified by the excuse that Islam promotes modesty and has tasked men with protecting the oh-so-inferior women. It is justified with a culture that is not like the much-disparaged Western culture where women wear shorts and have abortions. It is justified by the most dangerous of all excuses, traditional norms.  (Read Sana Saleem’s blog on rape culture here.)

Bolo Bhi is hosting a conference in Islamabad. Titled ‘Alliance for Action,’ the conference will bring together people from various professions and organizations to discuss growing censorship and surveillance over the Internet today, and how we can move towards safer and better access.

The Conference will be held on July 19, Saturday, between 2-7 PM at Marriott Hotel Islamabad. See below:

 

2:00-2:15pm

Registration

2:15-2:30pm

Conference Opening

2:30-3:10pm

Panel 1: Cost of Censorship & Surveillance for the Industry

Speakers: Jehan Ara & Wahaj us Siraj

3:10-3:50pm

Panel 2: Cost of Censorship on Education

Speakers: Dr Arshad Ali & Dr Qasim Sheikh

3:50-4:20pm

VIDEO: Documentary by Bolo Bhi

4:20-5:00pm

Panel 3: Privacy vs Surveillance

Speakers: Tahira Abdullah, Mubashir Zaidi & Sana Saleem

5:00-5:40pm

Panel 4: Leveraging the Freedom of Information and Right to Information Acts

Speakers: Dr Raza Gardezi, Zahid Abdullah & Usama Khilji

5:40-6:20pm

Panel 5: Talking Solutions

Speakers: Senator Afrasiab Khattak & Senator Farhatullah Babar

6:20-6:50pm

Q/A

6:50-7:10pm

Closing

 

 

The Necessary & Proportionate Principles can be construed as being the foundation of all legislative functions in regard to any surveillance that needs to be carried out anywhere in the world. What is necessary to note here is that there are barely a handful of nations which take citizen privacy seriously and do not perceive the denial of this privacy as an affront to an internationally recognized human right. In a state like Peoples Republic of China where the Great Firewall prevents citizens on accessing anti-state information and keep tabs on their citizens activity online. Ironically, Peoples Republic of   China was one of the principal designers of the membership of the Commission of the Human Rights.

In Pakistan, where surveillance and content filtering happens on an ad hoc basis and no legislation exists, the time is ripe to draft legislation pertaining to surveillance. The current set up entrusts the Federal Investigation Agency in tandem with the Ministry of Information Technology to carry out surveillance and blocking of pages on an ad hoc level. No information is disseminated to the common public to evaluate the criteria employed by the State in blocking websites. Nor explanations as to what is construed as, “objectionable” content. The Cyber Crimes Bills of 2007, 2011 and now 2014 all failed to make it past the Parliament, and with good reason; they repeatedly failed to address the blatant violations of citizen privacy and how they resonate with the Universal Declaration of Human Rights. Such repeated failures to strike a balance between protection of rights and provision of security have led to a landscape that is either completely unregulated, or regulated with a completely lack of transparency and with little or no public oversight, which are key principles of the Application of Human Rights to Communications Surveillance.
The latter scenario is ably demonstrated by the Anti-Terrorism Act of 1997, which reads:

5. Use of armed forces and civil armed forces to prevent terrorism.

(2) In particular and without prejudice to the generality of the provisions of sub-section (1), an officer of the police, armed forces and civil armed forces may—

iii) Enter and search without warrant, any premises to make any arrest or to take possession of any property, firearm, weapon or article used or likely to be used, in the commission of any terrorist act or scheduled offence.

Clearly a country at the front line of the War on Terror needs laws that effectively deal with the problems associated with terrorism, so in accordance with the Principles, there is a necessity and a legitimate aim. However, the question that then arises is whether such laws are proportionate and adequate, and whether they fit within the ambit of ensuring due process. The aforementioned law not only involves physical searches of property, which is an abuse of due process, but has also been used in order to digitally surveil individuals, which is a violation of the principle of user-notification. At a stage before sufficient guilt to process a warrant exists, this poses a serious threat to individual liberties. This is, not only by all standards a mockery of due process but also fails to ensure transparency and there is no form of public oversight, or competent judicial authority that oversees who is surveilled and for what purposes. The process also leaves no room for user notification of any form, and neither are the criterion of the requirement for proportionality addressed by the legislation. For a country attempting to pull itself out of a history of military rule, it does not bode well for democracy when unregulated and arbitrary policing is still the objective of the state. This clause even becomes harrowing when read with 27B of the same act, a recent addition to the Anti-Terrorism Act, which reads:

“… the conviction of an accused for an offence under this Act solely on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to [in the evidence law] shall be lawful.”

The addition of electronic evidence as a basis of conviction after allowing authorities to “hack” access to electronic devices in order to surveil individuals with no requirement for procedure or transparency further puts citizens at risk of being at the wrong end of a disproportionate misuse of unrestricted power by security forces.

The lack of accountability, which again is an integral pillar of the  Necessary and Proportionate Principles, was further highlighted by the creation of the Inter Ministerial Committee for the Evaluation of Websites (IMCEW) by the Prime Minister of Pakistan in 2006 via notification number 5-1 2005 DFU. The mandate of the IMCEW was ambiguous to the point that it defies all notions of clarity of law, with its official task being to censure “obnoxious and blasphemous” material over the internet. To this date, no legal definition has been attributed to the word obnoxious. That may go a long way in explaining why websites such as the Pakistan Telecommunications workers union website, minority rights websites, entertainment websites (such as IMDB), and many more have been blocked at some stage or the other by the IMCEW.

In approximately 8 years since it’s creation, no functioning or decision of the IMCEW has ever been made public. It provides no list of websites it requests the PTA to have blocked, it is not required to provide reason, and there exists no process for appeals against its decisions. Once again, a flagrant disregard for due process, with non-existent accountability and public oversight, and an arbitrary policing authority straight out of a Orwellian nightmare can be identified as a distinct feature of the Pakistani laws in relation to internet privacy and freedom of access to information.

Article 54 of the Pakistan Telecommunications (Re-organization) Act 1996 is another cause of concern. It reads:

“Notwithstanding anything contained in any law for the time being in force, in the interest of national security or in the apprehension of any offence, the Federal Government may authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system.”

Here the federal government provides itself with the complete authority to order searches and surveillance against individuals, which again poses questions of  due process, transparency, and proportionality. In its entirety, the law becomes a dilatory exercise that fails in its fundamental aims to protect individual liberties, and in the process, loses its legitimacy. This violates the Principles that demand authorities must have a “legitimate aim”, “necessity” and “adequacy”.

Being a citizen of a democratic state, it is every individual’s right to ask and be provided with information. However, in the geographical and legal jurisdiction of the Federal Government, bureaucracy prevents individuals from privacy, and access to information which is so desperately needed. In a report by Freedom House, Pakistan’s internet was classified as, “Not Free” with no regard to internet security and privacy. On a scale of 1-100 with 100 being worst, Pakistan ranked 67 on the Freedom on the Net. Such is our cyber infrastructure.

The current legislations and the lack of necessary protections calls for immediate reforms in existing laws, unless there’s significant push for secure and open communications fears of a surveillance state are real and fast becoming our reality.

The controversial Protection of Pakistan Ordinance, which had elicited an outcry from political parties and rights activists due to its draconian clauses and infringement of constitutional rights, saw the light of the day after an amended version was passed by the Senate on July 1, 2014 followed by the National Assembly on July 2, 2014.

This has been met with a mixed response. While some former opponents are content with the amendments, others suggest further amendments whereas some maintain there is no need for this law at all.

Bolo Bhi reached out to various legal experts and human rights activists to get their view on this piece of legislation and whether the amended version is any better than the original form. Read below what I.A. Rehman, human rights activist and a director of the Human Rights Commission of Pakistan, has to say about it.

Q. How different is the Pakistan Protection Act (PPA) from the Pakistan Protection Ordinance (PPO) when it was first tabled? Does the PPA address the concerns raised regarding the PPO?

A.  The text as given in the original ordinance hasn’t been radically revised. A few of the concerns have been met. For instance, the period of detention on remand has been reduced from 90 to 60 days, though preventive detention for 90 days and more is allowed. Appeal from the special court’s decision now lies with the High Court instead of the Supreme Court. No police officer below BS 15 can order firing; the rules have to be placed before parliament and some sort of inquiry into death by firing has been proposed. But the final version does not meet our concerns regarding the possibility of abuse by targeting political dissidents, the retrospective application of the law to legitimise illegal detentions (especially in Balochistan), and legitimisation of safe house. The definition of ‘Enemy Alien’ was better in the Ordinance. A new section allows the government to add new offences to the schedule which violates the parliament’s authority.

Q. The PPO was critiqued for its vague definitions. Are terms such as insurgents, cyber crimes etc clearer in the amended version?

A.  Insurgent and cyber crimes are not defined at all. The other definitions are vague and liable to subjective interpretation.

Q. Is the current iteration of the PPA in line with constitutionally protected rights & guarantees afforded to citizens of Pakistan?

 A. By making detention beyond 90 days subject to judicial review under Article 10 of the constitution, an attempt has been made to stay within constitutional limits. However, the PPA impinges on the people’s basic rights and hence it is in violation of the basic law. An equally important issue is the open possibility of the abuse of the law in view of the situation not only in the conflict zone but also in Balochistan and Sindh. The proposals regarding enemy aliens seem to be in conflict with the international laws of war.

Q. Does the PPA follow constitutionally proscribed due process standards vis a vis detention, warrant-less searches, burden of proof and evidence? Are they adequate?

A. There are deviations from due process regarding searches, use of fire power, presumption of guilt – that the state has been justifying through special laws (Anti-Terrorism Act, for instance).

Q. Is there scope for misuse of this law, especially with regards to the powers conferred upon law-enforcement agencies?

A. Great scope for misuse of law is there.

Q. What in your opinion still needs to change in this piece of legislation and what should be the way forward?

A. This legislation is not needed. Many of its objectives can be secured through the Anti-Terrorism Act. The authorities should give up efforts to legitimise disappearances and make a law to deal only with armed insurgents and a different law for alien combatants.

Related Posts:

Analysis: The Dreaded PPO 

Timeline: From PPO to PPA – its passage

Analysis: PPA – Ordinance to Act: Is There a Difference?

Interview: Zohra Yusuf

Bolo Bhi Resource Guide on the PPA

Back in April, we at Bolo Bhi analyzed the then Protection of Pakistan Ordinance, highlighting the problems that could potentially be caused by the Ordinance if it were to pass as law. At that point in time, members of the Senate stood against the PPO, vowing to prevent it from passing into law due to the various human rights violations in the proposed Bill. Nearly three months later, the PPO slipped into the recesses of the public eye and mind, and all eyes and minds turned instead to the recently initiated military operation, Zarb-e-Azb, against militants in North Waziristan region of the country.

However, on the morning of the June 25, 2014, in what came as a surprise move, the Senate Standing Committee on Interior approved an amended version of the PPO, which was swiftly followed by the Bill passing both in the Senate and the National Assembly on June 30 and July 1, respectively. Politicians who had previously criticized the Ordinance came out in their defence, claiming the amendments had removed all – or at least most – of their grievances, and minimized the scope for human rights abuse.

Civil rights groups however remain unconvinced that the scope for abuse has indeed been minimized in the  Protection of Pakistan Act, and are adamant that there has been hardly any substantial alteration to the original document. They contend what has been amended is merely cosmetic.

Below is an attempt on our part to analyze all the major amendments that have been made to the final Act in order to decisively conclude as to whether the latest iteration of the law actually does definitively act in order to rectify the flaws that were inherent in the original Ordinance.

Section 2(d) – Enemy alien:

The “enemy alien” provision exists in both the original Ordinance and the final Act, however there have been changes in definitions. These changes, though intended to rectify the lack of clarity, seem only to have added to the complexity and confusion around the definition of ‘enemy aliens.’ In the PPO, an ‘enemy alien’ was defined as someone who “failed to establish his citizenship and was suspected to be involved in waging of war or insurrection against Pakistan.” In the PPA, an ‘enemy alien’ is defined as one whose identity is “unascertainable as a Pakistani.”

This provision has been correctly criticized for its vagueness. An unascertainable Pakistani is not a non-Pakistani, so what is unascertainable citizenship anyway? Is an individual who has lost his ID card in a different city an unascertainable Pakistani? Many from the lower income strata live without proper proof of identification, yet they are and have been residents of the country since birth. This amendment to the initial legislation could construe them as aliens. The amendment, therefore does not positively impact the problem it set out to address; in fact, the problem is potentially perpetuated by expanding the scope for misuse.

Section 2(f) – Militant:

This provision sets out to define militants and though it provides a long list of characteristics one must possess in order to be deemed a militant, it perhaps goes too far when it states: “threatening to act in a manner prejudicial to the integrity of Pakistan.” The addition would seemingly be open to large amounts of abuse as political dissent may easily be construed as militant-like behaviour. Once again, a clause that has set out to attempt to rectify a lack of clarity in the original ordinance has gone too far in its quest and, in this case, created a provision that may be used in order to suppress protest and dissent against governing authorities in the country.

Section 2(h) – Preparing to commit an offence:

This is another clause that has been added to the final version of the PPA. Offences at such a stage are difficult to prove as they raise questions as to whether the mens rea is sufficiently well established. Read with the provisions of the Protection of Pakistan Act on arbitrary detention and the reversal of burden of proof, the clause once again leaves room for abuse. An innocent act can easily be viewed as preparatory, then putting the onus on the accused to prove innocence after a lengthy period of arbitrary detention. While it is not clear, this could potentially be without legal counsel.

 Section 3 – 15th Grade or above officer:

The PPO allowed any officer of the law, security forces, or armed forces to use as much force as necessary if they subjectively saw reason to do so. In the PPA, the provision has now been amended now only allow a 15th Grade officer or above the power to make that determination and use such force. The government clearly saw a harm in the original provision, but instead of removing the harm, it only limited the number of people who could cause the “harm.” The law also exempts law-enforcement personnel from punishments for causing grievous bodily harm while exercising the authority given to them under Section 3. No officer should be allowed to exercise his powers with such impunity be they above or below Grade 15. The failure to do only points towards a shift in Pakistan fast becoming a police State. 

Section 3(2)(a) – Investigation of officers involved in death due to Section 3 provisions:

While the PPO contained no provision as to the method of investigation, it did allow for investigation if death was caused by an officer exercising the authority allowed to him under Section 3. The PPA however now provides method of investigation. If an officer causes the death of a suspect under the provisions of Section 3, he is to be investigated by the head of his agency. This provision makes a mockery of concepts of checks-and-balances as it is highly unlikely the head would subject his subordinate – under his jurisdiction, to a fair investigation.

 Section 5(4) – Remand not exceeding sixty days:

The PPO had allowed for arbitrary and secret detention (the location of the remand was to be withheld from any and everyone) of up to 90 days without need to be brought before a judge. This amendment reduces that to 60 days, however that is only in cases when a judicial magistrate orders remand. The Government may still set a remand for a maximum of 90 days. The amendment quite spectacularly fails to address the actual question of arbitrary and secret detention after warrantless searches and how they impact an individual’s liberty. Under the PPA, this detention can also be carried out simply on the basis of suspicion of preparation of an act.

Section 6(5) – Retrospective Application:

In the earlier version, the PPO contained the provision of placing the burden of proof on the accused until proven innocent, and this applied to all individuals tried under the scheduled offences provided within the legislation. Despite vocal opposition to this specific provision, it has maintained its place in the recently passed Act. The PPA allows for any individual who is under arrest/detention before the passage of the Act to be charged and tried under this law. This retrospectivity will mean that the entire defence of the accused will be rendered pointless as the Act would flip the burden of proof upon him/her.

Section 9(2)(a) – Disclosure of information:

The only significant change is that now, under the PPA, law-enforcement agencies are required to admit whether they are detaining a person or not; however no other details can be obtained. Under the Act, as amended, the government need not disclose the location of detention of the individual, or the grounds of detention of the individual. Under this provision it would be near impossible for a detained individual to obtain legal counsel as the government may deem the contents of his case classified, thereby excluding anyone except a judge and the security forces from knowing the offence he has been charged with. Quite clearly this stands in contravention of constitutional principles of due process and right to fair trial.

Scheduled Offences 1(xiv) – Cyber crimes:

The PPO declared “crimes against computers” to be an offence under the law. The amended Act however streamlines this as cyber crimes that facilitate an offence under the Act. However, considering that Pakistan has no cyber crimes law  to draw direction from for definitions and methods of investigation, what may or may not constitute of a cyber crime is questionable. Could an individual be charged under such a provision for planning a mass-protest via online media?

Conclusion:

The Protection of Pakistan Ordinance was a deeply flawed attempt at solving a serious problem in Pakistan. The opposition made promises of change, and for once, the people of Pakistan trusted in those promises when the PPO was first blocked in the Senate back in April 2014. However those promises of change seem to have been hollow, and now we have in place the Protection of Pakistan Act, passed both the Senate and the National Assembly. Its much heralded amendments, as highlighted above, do little – if nothing – to rectify the flaws that existed in the original document. Arguably, they seem to act to enhance the scope for violations that were present within the PPO. If Pakistan is to take the war against terrorism and crime seriously, it must ensure the State does not become the same criminal it is locked in a fight against. Laws that compromise  the fundamental rights of citizens should never exist. As far as the Protection of Pakistan Act is concerned, a serious rethink is required in order to reassess the state’s strategy in combating crime and terrorism.

Related Posts:

Timeline – Protection of Pakistan Act: the journey of its passage

Timeline – Bolo Bhi’s Resource Guide to the PPA

 We almost always associate access to the Internet with censorship, but never think of it in terms of connectivity itself. The very first step to accessing anything on the Internet requires an Internet connection – one that works!

At some point or the other we have all complained about our Internet connections – for not working or being slow. And that is more often than not. As consumers, is the return on the money we pay worth the services provided? Are we getting what we signed up for?  We have every right to demand efficient and good quality service – even if we don’t always get it.

The aim of this survey is to gauge the quality of service consumers are getting in Pakistan from their Internet Service Providers – what they signed up for vs what they are actually getting. We intend to collate user responses into a report and bring it to the attention of the various ISPs that are providing these services; the Pakistan Telecommunications Authority (PTA) who is the regulator and supposed to ensure service and quality is maintained and consumer rights protected; and government officials and legislators to ensure consumers get their due.

The controversial Protection of Pakistan Ordinance, which had elicited an outcry from political parties and rights activists due to its draconian clauses and infringement of constitutional rights, saw the light of the day after an amended version was passed by the Senate on July 1, 2014 followed by the National Assembly on July 2, 2014.

This has been met with a mixed response. While some former opponents are content with the amendments, others suggest further amendments whereas some maintain there is no need for this law at all.

Bolo Bhi reached out to various legal experts and human rights activists to get their view on this piece of legislation and whether the amended version is any better than the original form. Read below what Zohra Yusuf, Chairperson, Human Rights Commission of Pakistan and a writer on media and human rights issues, has to say about it.

Q. How different is the Pakistan Protection Act (PPA) from the Pakistan Protection Ordinance (PPO) when it was first tabled? Does the PPA address the concerns raised regarding the PPO?

A. The amendments proposed by the opposition that have been incorporated are as follows:

  • Detention period reduced to 60 days from 90
  • Appeals can be filed in high courts; earlier it was the Supreme Court only
  • Firing on suspects as a last resort
  • Detention places to be revealed to the courts

However, most of our concerns remain unaddressed. The PPO legalises violation of fundamental rights. It also legalises disappearances; law-enforcement agencies (LEAs) are not obliged to inform families of where the detenue is being held. However, they will have to confirm if the person is in their custody. We have seen that even without the PPO, intelligence and military authorities have ignored directives of the superior courts.

Q. The PPO was critiqued for its vague definitions. Are terms such as insurgents, cybercrimes etc clearer in the amended version?

A. Terminology remains vague and therefore there are more chances of abuse; however, attempts have been made to define an ‘enemy’ and an ‘alien.’

Q. Is the current iteration of the PPA in line with constitutionally protected rights & guarantees afforded to citizens of Pakistan?

 A. No. It bypasses provisions related to fundamental rights

Q. Does the PPA follow constitutionally proscribed due process standards vis a vis detention, warrant-less searches, burden of proof and evidence? Are they adequate?

A. No. The burden of proof is now on the accused (to prove innocence), contrary to principles of justice whereby an accused is presumed to be innocent unless proven guilty.

Q. Is there scope for misuse of this law, especially with regards to the powers conferred upon law-enforcement agencies?

A. Firstly, terminology and provisions are both vague and open to interpretation. For example, the police can easily claim that they shot to kill ‘as a last resort’. We already have over 350 cases of extra-judicial killings in Karachi this year alone (according to figures given by the police itself).

Q. What in your opinion still needs to change in this piece of legislation and what should be the way forward?

A. It should be scrapped. Pakistan already has enough laws to deal with terrorism. Focus should be on enforcement.

Relevant Posts:

From PPO to PPA – a Timeline

The Dreaded PPO – an Analysis

On 14th May, several newspapers reported the gang-rape of a young college girl. Such stories are not uncommon in Pakistan, but what slowly unfolded over the days was more than just a gang-rape. These men were part of a gang that had sexually assaulted other college girls, and then videotaped the incident to blackmail them. Even more horrifying is the fact that the rape survivor was lured into the car where the rape took place by her best friend, who has also been arrested. Reportedly, the friend was part of the gang as well. But what about her motives for abetting in the rape of a friend? Is it possible that she had also been a  victim of the same gang, and was forced to help them because they filmed her sexual assault as well? There is no doubt of her guilt, and she should be punished. But if it is a likely possibility that she too was a victim, then this reflects an alarming global trend of using social media to shame victims of rape and sexual assault.

In December 2012, members of the hacktivist group Anonymous released information about a rape victim in Steubenville, Ohio, who had been raped at a party after she had passed out. By 2013, the case had made  headlines, especially because of how the rape survivor had been shamed through photos and videos shared by her rapists on social media. In 2012, a Canadian teenager named Amanda Todd committed suicide after she was blackmailed into exposing herself online, and was shamed and ridiculed at school when her photos were made public.  In another case in 2012, rape survivor Savannah Dietrich revealed the names of her attackers on social media, after a lenient plea bargain denied her the justice she deserved. As a result of this public naming and shaming, she faces possible jail time.

Social media might have opened up new avenues for people through which they can communicate and share information, but with great power comes the potential of even greater abuses. The concept of blackmailing young girls and women with incriminating photos and videos is not a new one, but it is a problem that has remained unaddressed so far. In Pakistan, where women are burdened with ‘family honor,’ they become an easy target for such forms of harassment. The harassment can come from anywhere; from former police officers, the victim’s classmates,  complete strangers on social media, or university students.

In cases where women are spared the horrific trauma of sexual assault, they are subjected to sexual harassment online. There should be no mistake that this form of cyber bullying is sexual harassment. Women are propositioned online, threatened with rape, and in most cases, their personal photos are put up on social media pages such as Facebook. In many cases, women’s faces are photoshopped on pornographic pictures in an attempt to humiliate and blackmail them. Such photos can wind up on Facebook pages which are filled with pictures of young girls and teenagers. The comments sections of such pages are filled with repulsive objectification as well.

The discussion should not revolve around the imposition of honour on women, or how that is exploited by blackmailers and cyber harassers. The debate instead needs to focus on the right to privacy, and digital safety. Young women online who talk about social change are often “punished” for their transgressions through cyber harassment such as online stalking, constant abuse and rape threats, or even morphing photos of activists. As the founder of Digital Rights Foundation Nighat Dad points out in a blog, communications technology has given an avenue to feminists and activists to have their voices heard. But at the same time, “anyone deviating from social norms are subjected to ridicule, abuse and serious threats and in most cases are unprotected by law – particularly blasphemy and rape laws.”

The awful rape case in Mansehra is just one terrible crime in a sea of nameless, faceless victims. Most remain silent because they are afraid of the consequences of speaking out when there are videos and photographs that they feel can destroy their lives. There is an absence of legislation that can ensure that such acts are made a criminal offense. It is also important to remember that like film, music, and art, social media often mirrors a country’s culture, and the level of harassment women face online is the same rape culture that trivializes rape, shames rape survivors, and normalizes sexual harassment to the point that sexually threatening attitudes are never questioned.

In a social structure where there is zero tolerance for women who speak up about abuse, social media has become a tool for punishment of such transgressions, so that rape culture remains intact. We cannot expect that social media will not be used to harass and intimidate women into silence if we are not willing to admit and identify how we are all part of the rape culture that wants to coerce and silence women.

What happens in the Mansehra case remains to be seen. After all, even Mukhtaran Mai was denied justice; Pakistan is not one of the countries where rape survivors get justice, but rather, where they get punished for the crime committed against them. But because of extensive media coverage, this case can be a stimulus for policymakers to lobby for women’s legislation regarding cyber-harassment. Women are subjected to far too many crimes as it is, for once we have the opportunity to curb cyber harassment before it develops into a major issue.

Benjamin Franklin, who is regarded as one of the Founding Fathers of the nation that proudly sings the Star-Spangled Banner, once said, “Those who surrender freedom for security will not have, nor do they deserve, either one.”   Moving the clock ahead by about three hundred years, we have the current President of the United States, Barack Obama, who said, “in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.”

The convolution of the “American dream” and what it implies, has wrought havoc in the socio-political landscape, which has continually evolved. May be, a few within the American political fold would refute Mr. Franklin’s statement by stressing on the volatile political and security landscape. Perhaps, Mr. Franklin did not take into consideration that magical boxes of light with a keyboard in front of them would constitute the gravest threat that the land of the free and the home of the brave would face. However, it is immaterial to discuss the volatility of changing political perspectives, what must be constant and an overriding force to dictate how a government operates is the element of law. The legal implications of a state defying its own or internationally ratified doctrines of legal principle.

In June of 2013, a person of whom the world had never heard of, an employee of the National Security Agency, by the name of Edward Snowden shook the world and the US Government by revealing that the foremost security agency in the developed world, was keeping tabs on, for the lack of a better word, everyone.

Pakistan, according to reports, was the second most surveilled country by the NSA, this came as a rude shock given the amount of existing “data-sharing” between the American Government and its ally. However, Pakistan itself prides on being the last in implementing the latest technology and ensuring the essential freedoms guaranteed by the Constitution of 1973. But the core crux remains how the theory of American exceptionalism in regard to international laws has allowed the State to willfully disregard the validity of international law and is unperturbed about the violations its own government agencies are now committing.

After September 11, 2001, the US Congress felt that the US was grossly ill-equipped to tackle terrorist threats on domestic soil. The restrictions placed on agencies to conduct domestic “spying” which included, but was not restricted to wiretapping and other surveillance methodology were subsequently removed, though the agencies had to obtain court orders to conduct such surveillance, giving the judicial arm of the State supreme authority to condone such acts. The Patriot Act, a piece of legislation that worried Congressmen due to the blatant manner in which it stripped civil liberties, remained intact and was renewed. However, this post does not refer to national legislation, but the manner in which the US is violating international law.

The United States of America ratified the International Covenant on Civil and Political Rights in 1992, giving the Human Rights Committee the authority to review human rights violations which are either taking place with the legal jurisdiction of the US or violations which US agencies are committing. In the light of evolving technology, the UN High Commissioner Navi Pillay at the opening session of the Human Rights Committee meeting stated, “Powerful new technologies offer the promise of improved enjoyment of human rights, but they are vulnerable to mass electronic surveillance and interception. This threatens the right to privacy and freedom of expression and association” reaffirming the notion that the American breach of citizen and noncitizen privacy is a major breach of international law.

Turning the interrogation lamp onto the Foreign Intelligence Surveillance Act of 1978, Section 702 of which gives US Security agencies broad, sweeping powers to conduct surveillance is in gross violation of the ICCPR which provides the following four principles to gauge whether such power is within the realm of human rights:

  • Limited by statute and clearly defined in nature and scope
  • Narrowly tailored to address legitimate governmental objectives, such as threats to national security
  • Subject to independent oversight systems to prevent abuse
  • Applied equally irrespective of nationality

Section 702 of the Foreign Intelligence Surveillance Act, under which the PRISM program falls, fails each of the above requirements. The Report and Recommendations the President’s Review Group on Intelligence and Communications Technologies states, “The United States must protect, at once, two different forms of security: national security and personal privacy”. Moreover, the report also states, “The United States should be a leader in championing the protection by all nations of fundamental human rights, including the right of privacy, which is central to human dignity”.

Such statements made by the President’s advisory group stand in stark contrast with the practice of the US Government. Such disregard for international doctrines are at polar opposites with US rhetoric and global policies. The Snowden revelations have already created ripples through the cyber sphere, stifling choices made by citizens on the services they connect to, what they make publicly available and the activities they engage in online, restricting their freedom of choice, which is also a violation of international law. What the US must realize is that internet security is a two way street: By giving legislative effect to collect, indiscriminately, personal information of non citizens,  can give other Governments the incentive to do the same with American citizens. In order to protect the rights, interests and information of its own citizens, the US administration must ensure the same of citizens which do not salute the star spangled banner. The there is also a significant debate about the NSA spying on it’s own citizens as well, an issue that has grabbed the attention of all of US media.

The United States of America is widely considered the sole global power: It must be the harbinger of peace, stability and the protection of fundamental freedoms, the very idea upon which the US Declaration of Independence was penned. The US must be the very example of adhering to global policies and laws, and not be the one violating them if it doesn’t want to be seen as hypocritical.