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