Opposition parties have come out firing against the Protection of Pakistan Bill (PPO), vowing to block it in the Senate. The Bill, passed by the National Assembly, is expected to be tabled in the Senate during the session currently in progress. Amending the bill to “constitutionalize” it before passing it and challenge it in court if efforts to block it are unsuccessful, are also options being considered by opposition members.
Why the PPO?
The PPO was first introduced as law by the President of Pakistan under the recommendation of the ruling party on the October 20, 2013. According to the government, the Bill seeks to strengthen security forces including the army, Frontier Corps, police and Rangers in the battle against terrorist in Pakistan. The Bill has come under harsh criticism due to what seems like an attempt to turn Pakistan into a police state wherein the ability and powers of the police and law-enforcement agencies have been disproportionately increased.
Proponents of the law, however, have defended it as a necessary step to curb the security situation of the country where political, sectarian and religious acts of terrorism have been increasing over the last decade. Supporters of the Bill have also argued it stands in line with precedents set in countries such as the US and UK. The US PATRIOT Act was passed only weeks after 9/11 in order to strengthen local law-enforcement agencies in combating home-grown and international terrorist threats to the US. Similarly, the Anti-terrorism Crime and Security Act 2001, was introduced in the United Kingdom.
What has largely been ignored by both the government and supporters of the Bill here are the severe implications. The consequences of this legislation on citizens’ rights will be far reaching if introduced in its current form:
In a discussion on the PPO on Siyasat Aur Qanoon, aired on April 12, the following concerns and required safeguards were raised by lawyer, Babar Sattar:
1) The government has failed to create a balance between policing powers and individual liberties.
2) The PPO reverses burden of proof and puts onus on accused vs accuser. Onus of proof should not be reversed. Accused should not have to prove he/she is innocent.
3) The preventive detention mechanism needs have oversight – even if the oversight is confidential – so at least the detainees’ status is known to the family.
Watch full show here:
Let’s have a look at some of the problematic clauses of the PPO:
Search, seizure and arrest
3 (2) (b) any police officer , a member of the armed forces or civil armed forces acting in aid of civil authority may arrest, without warrant, any person who has committed a scheduled offence or against whom a reasonable suspicion or credible information exists that he has committed, or is about to commit any such act or offence; and
3 (2) (c) any such officer may enter and search, without warrant any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used, or likely to be used, in the commission of any scheduled offence.
Firstly, sections 3(2) (b) and 3(2) (c) allow law-enforcement agencies to act on mere suspicion and detain individuals and/or search their property. Section 3(2)(c) allows for search and arrest without requiring a warrant. A warrant is a required safeguard that ensures investigating and law-enforcement agencies do not transgress their boundaries and misuse their powers. Those who cite the example of the US Patriot Act fail to mention that such excessive powers are not given even there. The provision for “secret” warrants exists, and law-enforcement agencies are required to apply for them. The PPO doesn’t make provision for even this. Secondly, vague terms such as ‘reasonable suspicion’ and ‘credible information’ are vague clauses and the determination has been left to the discretion of law-enforcement agencies whereas at least magistrate-level discretion should be exercised.
6) The Government may by an order in writing issued by the Secretary Ministry of Interior, or any officer, not below the rank of BPS-21, specifically designated in this behalf, authorize the preventive detention of a person for a period not exceeding ninety days if there are grounds to infer that such person is acting in a manner prejudicial to the integrity, security, defense of Pakistan or any part thereof, or external affairs of Pakistan, or public order or maintenance of supplies and services;
Section 6 of the PPO allows for preventive detention, whereby individuals can be detained for up to 90 days without anyone knowing they are being held. In a country where missing persons (people detained without cause or knowledge of any court or authority by intelligence/security agencies) is already a pressing concern, the Bill will only serve to legitimize detention of people without cause for a lengthy period of time. And since no record of the detention will exist, the scope for abuse of this clause will extend to ridiculous heights. In the United Kingdom, control order which endowed the Home Secretary with limited powers of authorizing arbitrary detention was abolished in 2011 by the Terrorism Prevention and Investigation Measures Act of 2011.
Burden of Proof
14. Burden of proof.- An accused facing the charge of a scheduled offence on existence of reasonable evidence against him, shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offence.
Section 14 of the PPO goes so far as to say “an accused shall be presumed to be engaged in waging war…unless he establishes his non-involvement.” This contravenes the fundamental principle of law where an accused is innocent until proven guilty – and it is not his/her job to prove his/her innocence; rather the accuser’s to prove the charge. If allowed in its current form, the PPO will deny citizens’ the fundamental right to a fair trial. It will put pressure on citizens who may not even have resources to fight a case, to protect themselves. Not only will the constitutional guarantee to a fair trial be subverted, but individual autonomy will be compromised due to the fear of presupposition of guilt of an innocent action.
(1) The following acts, if committed with the purpose of waging war against Pakistan or threatening the security of Pakistan shall be the scheduled offences and includes other offences relating to:
(i) acts that are calculated to influence or affect the conduct of Government by intimidation or coercion, or to retaliate against government conduct;
The problem with this definition is the lack of clarity. A fervent protest against the government may be arguably an act calculated to influence the conduct of the government. A strike and refusal to conduct business in protest for example certainly affects the government. Should government action or conduct not be the subject of legitimate criticism? Isn’t it the right of citizens to object and influence government conduct when they feel the government is in the wrong?
(xiv) crimes against computers including cyber crimes, internet offenses and other offences related to information technology etc;
This clause vaguely alludes to ‘offenses without going to any detail. There currently exists no law in Pakistan where these are described. A cybercrime law is already being considered which contains detail of offenses, punishments and methods of investigation – some of which still need to be brought in line with the rights’ perspectives. In the absence of clear definitions, this vaguely phrased clause will serve to infringe on rights and further stifle discourse online.
Supporters of the PPO have argued in favour of eliminating bureaucratic hurdles that will, in their view, only enable security forces to perform their duties more efficiently. The problem with this assumption is that it fails to take into consideration the lack of necessary checks and balances or safeguards.
As argued by Babar Sattar, draconian steps in the past such as the terrorism bill introduced by the Sharif government in the ’90s failed to yield any results whatsoever and sectarian strife is arguably worse today than it was back then. Similarly, illegal wire-tap and surveillance has been going on for years – now legitimized by the Fair Trial Act . That too, has not yielded desired results otherwise they would have been evident by now. Legitimizing misuse of power is not a solution.