Analysis: Another repressive law

IT’S here — in all its black and white legislative glory. The Protection of Pakistan bill — after attempts at amendments and the rare op-ed pointing out how it curtailed basic human rights — has got through parliament, with the National Assembly’s approval coming through on Wednesday. But the issue of basic human rights continues to dominate in the document. The Protection of Pakistan bill is the newest of the national security laws to have emerged from parliament; a law that expressly states it protects against the “waging of war or insurrection”. The law provides for preventive detentions, will go into effect retrospectively, and allows law-enforcement agencies and armed forces to arrest suspects and search houses without warrants; and authorises them to use force. Opposition parties managed to squeeze in some amendments to the original Protection of Pakistan Ordinance: some of the powers granted to law-enforcement agencies and the armed forces have gone; a judicial inquiry can be constituted for killing suspects. The Guantanamo-esque ‘enemy combatant’ term has been done away with, and has been replaced with ‘enemy alien’. Veteran human rights activist I.A. Rehman said, “They’ve made some changes, like reducing detentions and providing for references to the high court. But now they’ve included insurgents — and who are insurgents? They’re our own people.” In reference to the shoot-on-sight powers to officers of a BS-15 rank, Mr Rehman said that the question isn’t of the officer’s grade, but “whether they can shoot people without a second opinion”. But the Protection of Pakistan bill goes far beyond existing national security laws, and the impact will only be seen once it starts appearing in court documents. The silver lining — and surprisingly, there is one — is that the violations of human rights will inevitably be addressed when these cases and/or the law is challenged in the higher courts, in the light of previous judgments. One of the more glaring elements of the Protection of Pakistan bill is that it places the burden of proof on the suspect, reversing the age-old principle of ‘innocent until proven guilty’. Currently, it is the state’s responsibility to prove a crime; under the Act, an accused is guilty until he or she can prove otherwise. Zulfiqar Abbas Naqvi, a criminal lawyer, pointed out that this ‘burden of proof’ existed in the Control of Narcotic Substances Act as well. “The Supreme Court and the high courts have ruled that the prosecution still has to establish its case,” Mr Naqvi said. The Protection of Pakistan bill also states that several of the high court’s powers — including of habeas corpus, suspending a sentence and granting bail — that exist in the Code of Criminal Procedure don’t apply to the offences listed in the law. Yet, it allows those found guilty to challenge their sentences in a high court. Legal experts said this anomaly has previously emerged in cases under the Anti-Terrorism Act and the National Accountability Bureau law, with the Supreme Court ruling that the high court’s authority cannot be undercut. “The Supreme Court said you cannot create a parallel judicial system,” Abdul Maroof Maher, a state prosecutor at one of Karachi’s anti-terrorism courts said. But while some issues may be addressed, practically and legally, there are still far too many questions. The retrospective nature of the law is one. Under the Protection of Pakistan bill, anyone deemed to have been detained or arrested before the original ordinance was passed last year, can be considered arrested under the Act, if they’re accused of the same offences that are in the law. Practically, this means that anyone detained at the moment — assumedly including victims of ‘enforced disappearances’ — could find themselves accused under the Protection of Pakistan law. “This is a good thing,” Mr Maher said. “This will help solve the issue of ‘missing people’. At least you’ll know where your person is. At the very least, you’ll know that the person is detained, has been legally charged.” But the mystery of the missing may not necessarily be solved for those searching for them. According to the Protection of Pakistan bill, the government, armed forces and law-enforcement agencies may withhold information on why it has detained someone; and may only tell a high court or the Supreme Court where the detainee is being held. The law may have been passed, but the challenges are only just starting to emerge. The Protection of Pakistan bill promises new special courts and judges; but cases in Karachi under its predecessor — the Protection of Pakistan Ordinance — have so far been heard by one of five anti-terrorism courts. With overburdened courts already dealing with everything from young men accused of murders in Karachi’s upscale Defence neighbourhood to alleged extortionists, how will a court where judges and lawyers are routinely threatened deal with another mass influx of cases? Mustafa Qadri, the Pakistan Researcher at Amnesty International, said that “successive governments seem to think that the way to dealing with the breakdown of law and order is through giving law-enforcement agencies sweeping powers; instead of the nitty-gritty of having people properly trained in forensics, having proper prosecutors, a witness protection programme, not allowing people to use prisons for operations.” “In a way,” Mr Qadri said, “these kinds of security laws take the pressure off the state to address these issues.” Another issue — for law-enforcement agencies and courts — will now be determining whether a case falls under the Anti-Terrorism Act or the Protection of Pakistan Ordinance, because the laws overlap extensively. In one recent episode, a case was filed under both laws. “The investigation agencies are a victim of confusion; they’re applying the Protection of Pakistan Ordinance and the Anti-Terrorism Act at the same time,” Mr Maher said. Lawyer Faisal Siddiqi said that the law “was simply enacted to give legal cover to already existing practices by law-enforcement agencies”, such as killings in police encounters and enforced disappearances. However, Mr Siddiqi said: “The irony is that it is being said that the law is being brought against the war on terror and this law doesn’t even apply to the so-called war area,” given that the bill will be enforced in the federally and provincially administered tribal areas only if the president issues a notification to that effect. Published in Dawn, July 3rd, 2014