PILDATLegislativeBrief20_ProtectionofPakistanAct2014 (2)

8/9/2019 PILDATLegislativeBrief20_ProtectionofPakistanAct2014 (2)

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April 2014

Executive Summar y

The preamble to the PPO gives the rationale for the new law by stating that it isexpedient to provide for protection against 'waging of war' against and threats tothe security of Pakistan and to provide for the speedy trial of offences fallingwithin the Schedule to the PPO. The PPO is being promulgated, ostensibly, on thedirections of the August Supreme Court in relation to cases of civil disturbance indifferent parts of the country. The PPO establishes special courts for the purposesof prosecution of the accused of the scheduled offices in 'in camera' trials. The

public is to be excluded from the proceedings before a special court upon theapplication made by the prosecution on the ground that to make the proceedings

public would prejudice public safety. The “Combatant Enemy” is defined as a person who raises arms against Pakistan and/or threatens the security of Pakistan.

Curr ent StatusThe Protection of Pakistan Ordinance, 2013(PPO 2013) was promulgated by PresidentMamnoon Hussain on October 31, 2013 andlaid before the National Assembly on

November 7, 2013. The PPO 2013 was furtheramended through Protection of Pakistan(Amendment) Ordinance 2014 on January 22,2014. It was presented to the NationalAssembly on January 30, 2014 and to theSenate on February 05, 2014. The NationalAssembly gave the Protection of PakistanOrdinance 2013 an extension of 120 days onFebruary 07, 2014. The report on the

Protection of Pakistan (Amendment) Bill,2014 was presented to the House by theChairman National Assembly StandingCommittee on Interior, Rana Shamim AhmedKhan, MNA on April 02, 2014. On April 07,2014 the National Assembly passed theProtection of Pakistan Act, 2014 bycombining the original Ordinance and itsamendment in one bill. Currently, two petitionslie against the PPO challenging itsconstitutionality, one in the High Court ofIslamabad and the other in the Supreme Courtof Pakistan.

About the Legislat ive Brief The objective of this Brief is to assist citizens inunderstanding the context, objective and issuesrelating to the legislation so that they may

participate in the process as informedstakeholders as well as in overseeing theeffective implementation of a law oncefinalized.

Acknowledgements & Disclaimer This Legislative Brief has been commissioned

by PILDAT while two eminent lawyers, SyedAli Zafar , Advocate Supreme Court ofPakistan and Ms. Ayesha Hamid , Advocate

High Court, have presented their perspectiveson the PPO 2014. PILDAT Team has compiledthe two perspectives in this brief in order tocontribute comprehensively to the debatesurrounding the PPO. PILDAT gratefullyacknowledges the perspectives of both authorsand reserves its right to subscribe to any

perspective.

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E-mail: [email protected] | Website: www.pildat.org

1Protection of Pakistan Act 2014

1. For the sake of simplicity the amendment(s) made to the PPO 2013 through the Protection of Pakistan (Amendment)Ordinance 2014 will be read as part and parcel of the said Ordinance but where major amendments have been madeto the PPO 2013 this will be indicated against the relevant section by adding the words “Amendment 2014” againstthe same in brackets.

Highlightsi. The provisions of the Protection of Pakistan 2013 [hereinafter referred to as the

“PPO”] are meant to provide protection against the 'waging of war' against andthe threats to the security of Pakistan.

ii. The PPO appears to be ostensibly promulgated in response to the directions ofthe August Supreme Court.

iii. The “Combatant Enemy” is defined as a person who raises arms against Pakistanand/or threatens the security of Pakistan. [Amendment 2014]

iv. Enemy Alien' is defined as a person who fails to establish his citizenship ofPakistan and is suspected of involvement in the waging of war/insurrection/depredation against Pakistan. [Amendment 2014—a person who has beendeprived of his acquired citizenship by the Federal Government is also includedin the definition].

v. Police officers, members of the armed forces and civil armed forces may fireupon, arrest without warrant or enter and search without warrant any premiseson forming a 'reasonable apprehension' against any person in respect ofcommission of a scheduled offence. The Schedule attached with the PPO isfairly comprehensive.

vi. The Government may authorize the preventive detention of a person for up to 90days if the person is acting, in the opinion of the Government, in a manner

prejudicial to the security of Pakistan.vii. A person arrested/detained by the Armed or Civil Armed forces BEFORE the

coming into force of the PPO shall be deemed arrested/detained under the PPO[Amendment 2014].

viii. An enemy alien may be detained by the Government for an indefinite period.ix. Special courts may be established for prosecuting persons accused of offences

under the PPO.

x. The public may be excluded from the proceedings of a Special Court on thegrounds of public safety. [Amendment 2014]

xi. A Special Court may deprive the offender of his citizenship in addition to other punishments that may be meted out. [Amendment 2014]

xii. The Government, Joint Investigation Team, Civil & Armed Forces maywithhold information regarding the location and whereabouts of a detainee.[Amendment 2014]

xii. The Government, Joint Investigation Team, Civil & Armed Forces maywithhold information regarding the location and whereabouts of a detainee.[Amendment 2014]


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[Amendment 2014].

The Armed Forces as well as the Civil Armed Forces such as the Frontier Constabulary, Frontier Corps, Pakistan Coast Guards,Pakistan Rangers, etc., are assigned the role of policing and prosecution of enemy aliens and combatant enemies.

The PPO empowers the police officers, members of the armed forces and members of the civil armed forces to arrest, withoutwarrant, any person against whom they have a reasonable suspicion of having committed or planning to commit a scheduledoffence.

The PPO also grants the Armed Forces and the Civil Armed Forces the right to fire upon any person against whom they areauthorized to use force.

The PPO authorizes the Government to detain a person for upto 90 days, if, in the opinion of the Government, such a person is acingin a manner prejudicial to the security of Pakistan.

The PPO allows the Government, Civil and Armed Forces, in the interests of security of its personnel, etc., to withhold information

regarding the location of the detainee or the accused.

The “Combatant Enemy” is defined as a person who raises arms against Pakistan and/or threatens the security of Pakistan.[Amendment 2014].

The special courts have been empowered to deprive the offender of his citizenship.

02 April 2014

Analysis of the PPOAuthored by Ms. Ayesha Hamid

1. Preamble

The preamble to the PPO states that it is being

promulgated pursuant to the directions of the AugustSupreme Court in cases of civil disturbance. The PPO isstated to provide for speedy trials of offences fallingunder the Schedule of the PPO and to protect against thewaging of war against Pakistan and prevent actsthreatening the security of Pakistan.

It is, however, difficult to see the rationale for the PPO inthe presence of Anti-Terrorism Act 1997, (especially inview of the fact that vide Anti-Terrorism (SecondAmendment) Act 2013(ACT XX of 2013) the aforesaidAct has been already been made “stronger” and providesfor preventive detention (30 days), forfeiture of the

pro pert y of te rro r susp ects , in ter cept io n of

communications between suspects, etc. In short theexisting legislation provides the investing and

prosecuting agencies with wide powers) which was promulgated for purposes of prevention of terrorism,sectarian violence and for the speedy trial of heinousoffences.

2. Enemy Alien and Combatant Enemy:[Section 2]

The PPO defines the categories of “Enemy Alien” and“Combatant Enemy.” Enemy alien is a person who fails toestablish his citizenship of Pakistan or has been deprivedof his acquired citizenship by the Federal Government

and is suspected of waging war or insurrection againstPakistan. Combatant enemy, as inserted vide Amendment2014, means a person who raises arms against Pakistan orcommits or threatens to commit any scheduled offence.The scheduled offences are wide ranging and fairlycomprehensive. It would appear that the category of

enemy alien has been defined/created to bypass the protective provisions of Article 10 of the Constitutionwhich affords any person's legal protection as to arrestand detention. But Article 10(9) exempts the applicationof the said Article to any person who is an enemy alien.'Enemy Alien' is prohibited from suing in PakistaniCourts without permission of the Federal Government byvirtue of Sec 83 of the Civil Procedure Code 1908 [enemyalien being a person residing in a country at war withPakistan]. The Defence of Pakistan Rules, 1971 at Rule2(2) define an enemy of Pakistan as a person [including aPakistani citizen] “at war with or engaged in militaryoperations against Pakistan.” In the light of existingconcepts of “Enemy Alien” why did the Government feel

the need to broaden the category?

3. Fire Upon Persons, Arrest & Search WithoutWarr ant(S):[Section 3]

Section 3(2)(a) allows the Armed Forces and Civil ArmedForces to fire upon any person against whom they areauthorized to use force. The aforesaid provision amountsto giving a “license to kill” to the law enforcementagencies. One can imagine that in certain, very extremecircumstances, the Armed Forces or the police mayrequire such draconian powers. The powers granted bythe PPO extend also to civil armed forces, e.g., the

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Pakistan Coast Guards. It is likely that such a law will leadto abuse and moral corruption of Civil Armed Forces nottrained to implement such commando style powers.

Section 3(2)(b) allows officers of the police, armed forcesand civil armed forces to arrest without warrant a personwho has committed a scheduled offence or against whoma reasonable suspicion or credible information exists ofhaving or being about to commit a scheduled offence. ThePPO fails to lay down guidelines on what may constitutereasonable suspicion or credible information. In effectthe constitutional protection against arbitrary arrest, asafforded by Article 10 of the Constitution, Sections 491,496 and 497 of the Criminal Procedure Code, 1898, aswell as the directions in the nature of habeas corpus underArticle 199 of the Constitution, is being negated through

section 3(2)(b) of the PPO.

Section 3(2)(c) allows the members of the armed forces,civil armed forces or police to enter and search, withoutwarrant, any premises to make arrest or to take possessionof any property, etc., used or likely to be used in thecommission of scheduled offences. Again, this is a wideranging and unfettered power being extended to a host ofcivil defence agencies and will undo a long protracted

battle to enforce civil liberties in Pakistan and to ensurethat law enforcement agencies do not overstep their

powers with respect to those suspected or accused ofcrimes.

4. Who is an Enemy Alien? [Section 5]

According to section 5(5) of the PPO a person whoseidentity cannot be ascertained shall be considered anenemy alien and presumed to be waging war againstPakistan. This presumption is against the canons of lawwhereby a person suspected or accused of an offence isextended the benefit of doubt and is presumed innocenttill proven guilty. The PPO turns this accepted wisdom onits head and instead an adverse presumption is madeagainst the person unable to prove his identity. This is amost unfortunate development in Pakistani law.

5. Preventive Detention: [Section 6]

The provisions of section 6 of the PPO allow theGovernment to authorize the detention of a person forupto 90 days if, in the opinion of the Government, the

person is acting in a manner prejudicial to the security ofPakistan. Most alarmingly section 6(5), as inserted videAmendment 2014, provides that a person arrested ordetained by the Armed or Civil Armed Forces and keptunder arrest before coming into force of the PPO shall bedeemed to have been arrested/detained under the PPO.

These provisions have a direct nexus with the entire issue

of “missing persons” in Pakistan. It would appear that thePPO (Amendment) Ordinance 2014 has been

promulgated to retrospectively give legal cover to theheretofore illegal detention of the “missing persons.”Pakistan is a signatory to and has ratified the Human

2Rights Declaration and the ICCPR. Article 9 and Article10 of the Constitution of Pakistan afford persons the

protection of law before they can be deprived of life orliberty or arrest/detention in custody. In direct violationthereof the preventive detention clause allows the lawenforcement agencies to “disappear” the persons on meresuspicion of involvement in the comprehensive list ofscheduled offences.

6. Special Courts: [Section 8, 9 And 9A]

Section 8 empowers the Government to establish specialcourts for the trial of scheduled offences. Section 9 allowsthe Government to withhold the grounds for detaining a

person who is an enemy alien or combatant enemy and towithhold the information regarding location of thedetainee and further, the special court is empowered todeprive the offender of his citizenship [Amendment2014]. Section 9A, as inserted vide Amendment 2014,allows for the trials to be conducted in secret on the

pretext of public safety. All of the offences listed in theschedule to the PPO already exist as offences under the

provisions of the Pakistan Penal Code 1860 and the Anti-Terrorism Act 1997 [as amended vide Anti-Terrorism(Second Amendment) Act 2013(ACT XX of 2013)].

7. Burden of Proof: [Section 14]

Section 14 of the PPO provides that an accused, onexistence of reasonable evidence shall be presumed to beengaged in waging war against Pakistan unless heestablishes his non-involvement in the offence. Everycivilized criminal system proceeds on the basis that a

person is presumed innocent until proven guilty; the burden of proof is upon those accusing a person of a particular offence. The PPO reverses this presumptionand places the burden of proving his innocence on theaccused.

However, 'reasonable evidence' has not been defined andin case this provision is not amended it will run counter tothe established case law in Pakistan whereby a personaccused of an offence must be convicted upon, and onlyupon, the presence of proof beyond a reasonable doubt.The concept of 'reasonable' evidence, if at all, exists in therealm of civil litigation where a preponderance ofevidence may be taken as proof of the existence of a factor circumstance. World-wide, the accepted legal wisdomis that a person cannot be convicted of an offence withoutstrong conclusive proof of the commission thereof.

2. International Convention of 'Civil and Political Rights was ratified by Pakistan in 2010 and Article 9 thereof affords protection against arbitrary arrest and detention.

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8. Transfer Of Cases: [Section 16(3)] [Amendment2014].

Section 16(3), as inserted vide Amendment 2014, of thePPO allows the Government to seek transfer of any caseinvolving a scheduled offence to be transferred to aspecial court. Given that the special court may beestablished at any location in Pakistan, the practical effectof this provision will be to deny the accused personsaccess to their families and well-wishers and make itdifficult for them to be represented by legal counsel oftheir choice.

9. Usurping the Powers of High Cour ts: [Sections 17&18]

Section 17 makes the provisions of certain sections of theCriminal Procedure Code, 1898 inapplicable to the provisions of the PPO; specifically the powers of the HighCourts to act as appellate courts in terms of confirmingsentences of death, to review the legality of the orders

passed by subordinate courts with respect to bail anddetention, to suspend the execution of a sentence passed

by a subordinate court and to issue directions in the natureof writ habeas corpus have been excluded. Instead, thePPO provides at section 18 that an appeal against the final

judgment of a special court shall lie to the Supreme Court.

A charitable view of the said provision would presumethat it is meant to provide for greater efficiency in terms of

streamlining the appellate process. However, a carefuland detailed reading of sections 374, 426, 435, 439, 439A,491, 496, 497, 498 and 561A of the Criminal ProcedureCode 1898, establish that the provisions sought to beexcluded provide for very important powers of reviewand supervision by the High Courts. The inherent

jurisdiction of the High Courts to review is recognized byall other special laws which carve out a special

jurisdiction for special courts from the plenary jurisdiction of civil and criminal courts. It isunprecedented for the inherent jurisdiction of the HighCourts to be denied in this manner. It establishes an un-welcome precedent because it leaves the process ofspecial courts open to abuse.

The PPO and PPO (Amendment) Ordinance2014 compar ed to the Anti-Terrorism laws in theUK

Since 2000 there have been 5 major pieces of anti-terrorism3legislation in the UK. As compared to the preventive

detention of 90 days envisaged in the Pakistani legislation orin the case of enemy aliens facing an unlimited detention: theUK laws are based on control orders which impose conditionson the movements of the suspected person. In 2004 following

a ruling that foreign nationals could not be detained withouttrial and that this was a breach of the European Convention onHuman Rights, the UK law was amended [Prevention ofTerrorism Act 2005] where even the movements of foreignnationals could only be subject to control orders. The CounterTerrorism Act 2008 allows the police to question suspects afterthey have been charged. It requires convicted terrorists tonotify the police of their whereabouts. The Governmentattempted to increase the pre-charge detention of terroristsuspects to 42 days but was defeated. The pre-charge detentionof terrorist suspects remains 28 days. One interesting aspect ofthe Counter Terrorism Act 2008 is the provision whereby itmakes the eliciting, publishing or communicating informationor photographs of the police a potential offence. One can seereflected in this a need to protect police forces.

The PPO and PPO (Amendment) Ordinance2014 compared to the Anti-Terrorism laws inIndia

The Prevention of Terrorist Activities Act [POTA] wasintroduced in India in 2002. It was heavily criticized forcurtailing human rights. It was repealed in 2004 and replaced

by the Unlawful Activities (Prevention) Amendment Act,2004 which amended the pre-existing Unlawful Activities(Prevention) Act, 1967 [UAPA]. Many of the penal provisionsof the POTA were incorporated into the UAPA. Howeversome of the objectionable clauses of the POTA, from the pointof view of human rights, were dropped. As the Indianterrorism law currently stands, the burden of proof is on the

police. There is no presumption of guilt against the suspectedterrorist. A confession made before a police officer may not beused against the suspect. The prior sanction of the Central orState Government is necessary before taking cognizance ofoffences under the UAPA. The Criminal Procedure Code 1973applies to arrests, bails, confessions, etc., under the UAPA.Those arrested must be brought before a Judicial Magistratewithin 24 hours. The proceeds of terrorism may be forfeited.Threatening witnesses is an offence and the identities ofwitnesses may be kept secret even in Court proceedings.

3. Terrorism Act 2000, Anti-Terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005, Terrorism Act 2006 and the Counter-Terrorism Act 2008.

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Recommendations for Par liamentar ians

The PPO and specifically the PPO (Amendment) Ordinance 2014 are a direct response, in letter though not in spirit, to theobservations and order(s) dated 10.12.2013 of the August Supreme Court of Pakistan in the Human Rights Case No.23388-K of2013 viz the Mohabbat Shah case. Dealing with the case of 35 persons who 'disappeared' from the Internment Centre Malakand, theAugust Supreme Court observed in relation to “these apparently Kafkaesque workings of the concerned authorities” that it is theArmy which is responsible for these enforced disappearances and that the principles of customary international law codified in theUnited Nations General Assembly Declaration on Enforced Disappearance 1992 and the Convention against EnforcedDisappearance 2006, even though not ratified by Pakistan, would be applicable to Pakistan as enforced disappearances are a crimeagainst humanity and violate Articles 9 and 10 of Pakistan's Constitution.

The August Supreme Court observed that the Federal Government though the Prime Minister/Cabinet must “ensure that all thoseofficers who are responsible for their removal and have failed to account for this so far should be dealt with in accordance with law.”In addition the August Supreme Court declared that presently there is no law for un-authorizedly detaining undeclared internees[except the provincial law “Actions (in Aid of Civil Power) Regulation 2011” which is applicable in the KP].

It would have been wiser to amend the Anti-Terrorism Act 1997 [as amended vide Anti-Terrorism (Second Amendment) Act2013(ACT XX of 2013)], if required, or preferably to strengthen agencies, charged with prosecution of those accused of thescheduled offences rather than creating a new controversial law which attempts to remedy the failure(s) of the prosecuting and

policing agencies by granting the same wide and unfettered discretionary powers in terms of arresting and searching suspectswithout warrants, conducting trials in secret and meting out harsher punishments. It would appear that the PPO (Amendment)Ordinance 2014 has been promulgated to retrospectively give legal cover to the heretofore illegal detention of the 'missing persons.'The Anti-Terrorism Act 1997 [as amended vide Anti-Terrorism (Second Amendment) Act 2013(ACT XX of 2013)] at section 13 hasalready established separate Anti-Terrorist Courts for the speedy trial of terrorist offences. In the light of the presence of Anti-Terrorist Courts, it is difficult to justify the establishment of yet further special courts to try the scheduled offences.

It is recognized that in Pakistan there is an abiding threat to judicial officers and prosecutors involved in the prosecution of terrorists,most recently seen in the terrorist attack on the Islamabad District and Civil Courts on March 3, 2014. However, the solution lies in

beefing up the protection afforded to judges and prosecutors and strengthening the institutions of the judiciary as well as the prosecuting agencies and not in making the proceedings of the trials for the scheduled offences secret. The presence of the public atany trial ensures openness, transparency and prevents abuse of principles of natural justice.

The scheduled offences already carry harsh punishments of death, life imprisonment or imprisonment for upto 10 years. In thecircumstances, the unprecedented punishment of depriving offenders of their citizenship is contrary to international human rights[Amendment 2014]. The Pakistan Citizenship Act 1951 at section 16 empowers the Federal Government to deprive a naturalizedcitizen of his citizenship if he is shown to be disloyal to Pakistan's Constitution. If a person has acquired the citizenship of Pakistanthrough long residence or marriage, it is conceivable that the special court may validly strip such a person of the citizenship thusacquired. However, in the case of a person who is born a Pakistani citizen, can any court deprive an offender of his citizenship? Can a

person, born in Pakistan, be rendered stateless? This amended provision is unnecessarily harsh and in violation of fundamentalhuman rights.

Given that there are 2 separate petitions, one pending before the August Supreme Court and the other before the HonourableIslamabad High Court, challenging the vires of the PPO and in the light of the order dated 10.12.2014 passed by the August SupremeCourt and given that the PPO has serious ramifications for citizens' human rights, Parliament must ensure that the law meets theserious and urgent requirements of containing terrorism as well as meet the needs of protecting human rights. Following are somerecommendations for consideration by legislators who may wish to amend the PPO and the PPO (Amendment) Ordinance 2014 so

as to:

i. Make it inapplicable to the Civil Armed Forcesii. Curb the powers of arrest & search without warrantiii. Curb the powers of firing upon suspects on 'reasonable apprehension'iv. Make preventive detention subject to Review Boards as per provisions of Article 10 of the Constitutionv. Remove the bar to the jurisdiction of the High Court(s)vi. Allow public trialsvii. Make it compulsory for the accused to be informed of the charges against them and make it incumbent upon the authorities to

release the information regarding location of detaineesviii. Remove the power of the special court to deprive an offender of his citizenshipix. Reverse the burden of proof; the prosecution agency must prove its case against the accused rather than rely on adverse

presumptions against the accused x. Remove the retrospectivity of the PPO; illegal detentions and enforced disappearances cannot be ratified and given legal cover

through the PPO


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Analysis of the PPOAuthored by Syed Ali Zafar

The Constitution is the supreme law. Fundamental rights,human rights and individual rights are inalienable. Under theConstitution of Islamic Republic of Pakistan, 1973, Articles 4and 9 of the Constitution guarantee that due process of law is to

be followed while deciding the civil and criminal liabilities ofany person and any law made or action taken, whichcontravenes this basic principle, is void.

The Supreme Court of Pakistan has in various cases like Al - Jehad Trust Vs. Federati on of Pakistan PLD 1996 SC 324 affirmed that “ri ght to have a fair and proper tri al and a ri ghtto have an impartial court or tr ibunal ” is “a well recognizedinviolable ri ght enshrined in Ar ticle 9 of the Constituti on.”

Similarly in the case of Government of West Pakistan Vs.Begum Agha Abdul Karim Shorish Kashmir i PLD 1969 SC14, the Court decided that Article 4 of the Constitution

provided guarantees “as comprehensive as the American dueprocess clause.” This was also re-affirmed in Manzoor El ahiVs. Federati on of Pakistan PLD 1975 SC 66 and has beenreiterated in various judgments.

thSince the 18 Amendment to the Constitution, Parliament hasestablished “Fair Trial ” as a fundamental right. Article 10A isexhaustive and clear in its application. Article 10A providesthat:

“For the determi nation of h is civil ri ghts and obligations or

in any criminal charge against him a person shall be enti tledto a fair tr ial and due process.”

Although the Parliament is sovereign, its powers are limited.Parliament cannot make laws against the Constitution oragainst the fundamental rights enshrined in the Constitution.Any law against the Constitution is void.

In ordinary circumstances, the Courts have, through the powerof judicial review and in exercise of judicial activism,enhanced and expanded the definition and scope offundamental rights. In this regard judiciary is seen as the'Champion of democracy and guardian of f undamentalrights '.

But extraordinary situations need extraordinary laws.Abraham Lincoln at one stage, when the US was faced withcivil war, decided to suspend the writ jurisdiction of the USCourts. He defended this decision by saying that the “Statecomes befor e the consti tut ion ”.

Pakistan, no doubt, today is faced with terrorism and is in astate of war with forces, who for their ulterior motives, desireto overthrow the Constitution and impose or carve out theirown state. This is indeed an extraordinary situation.

In such situations, there is an extreme minority view that

fundamental and human rights need to be suspendedaltogether temporarily to meet the dire situation and save theState. However, the almost unanimous opinion is that at leastsome measures of curtailment of fundamental and humanrights have to take place in such situations.

In the current state of affairs in Pakistan, it is a genuine fearthat if the legal system is not enforced to meet the threats ofterrorism immediately and now, the threat will become

permanent and it will be too late to do anything about it later.Those who want to throw the Constitution will become too

powerful and unstoppable.

The consensus should be that there is a need for a law like theProtection of Pak istan Act. The nation needs to rally togetherand unite as one on this issue. There is no need for opposition

for the sake of opposition. If we do not become part of thesolution now, we will all become part of the problem soon.

There is, of course, a need for balance between the need forenforcement of fundamental rights with the requirement togive the investigating agencies and the Courts, through thelaw, as much teeth as can be permitted.

What needs to be realized is that the gains made in battlefieldscannot be lost in the Court Rooms and as such the need toreform the legal system is certainly there. It also needs to berealized that it would be useless to make laws which deal withordinary circumstances.

It is true that historically Pakistan has been experimentingwith various laws to deal with terrorism. The principal actalready in existence is the Anti Terrorism Act of 1997. ThisAct, as originally promulgated, was in fact examined by theSupreme Court of Pakistan in Mehram Bibi' s case on thetouchstone of fundamental rights and the Constitution, and theCourt declared certain provisions of this Act as void. Manyamendments were then carried out thereafter in this Act incompliance with the orders of the Court and otherwise. Thislaw has, however, failed in its objective, and according toreports, the acquittal rate of the accused is more than 75%under this law. Practically, this law has failed in its purposeswhich clearly shows that there is need for more strict laws.

Many countries in the world have had to deal with theseextraordinary situations where laws have to be made to dealwith terrorists. Although the first written constitution in theworld was the Constitution of M edina , but in the modernworld, the basic written constitution, which has been followedin many other countries, is the US Constitution. US has a greatand established tradition of recognizing and enforcingliberties. The US courts have laid down landmark judgmentson establishment of the due process for trials and onfundamental rights. However when US, as a nation, faced thethreat of terrorism, which, when compared with the threatfaced by Pakistan, is minimal, temporarily set aside all itstheoretical concepts of individual freedoms and enforced thePatriot Act and Homeland Security Act. Although these laws

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were draconian and clearly violative of the fundamentalrights, the US nation stood as one, the party in the governmentand the party in the opposition were united; the civil societywas silent and the Courts did not interfere. The decision wasthat the country comes first and the threat being extraordinary,extra ordinary measures needed to be taken.

India is another example. It is the largest democracy in theworld and there is no doubt that the constitutional rights arefully guaranteed there as well. However when India was facedwith terrorist activities, the Indian Parliament did not hesitatein promulgating the Terrorist and Disruptive Activities(Prevention) Act (TADA). TADA has been criticized by thehuman rights activists and worldwide as being against all

principles of fair trial, yet all parties in India united together behind this law as they felt that the country needed such drastic

laws. The Indian Supreme Court also did not interfere. The lawstill exists and continues to do so.

There are numerous examples of other nations includingUnited Kingdom which when faced with their own terroristactivities have laid down such laws.

In a latest judgement of the Federal Court of New York, whichis one of the most respected Federal Courts in US, the Courtdecided that if the intelligence agencies have a reasonablesuspicion that force is required against a person involved interrorist activities including a US citizen, the Courts will

believe them.

With this background, the provisions of the PPO Bill 2014 areindeed in keeping with the time and the need of the hour. TheBill has now been approved by the National Assembly andvarious amendments have been carried out allaying many ofthe criticisms that were needlessly heaped upon this law. Someof these amendments have improved but some have takenaway necessary teeth. Nonetheless over all the law continuesto remain necessary. The law needs to be passed by theParliament urgently and if there are any provisions whichviolate fundamental rights, the Courts have ample power toexamine the same and declare such provisions invalid. Thistask should be left to the Courts.

Subject to this there are some objections to the Bill which need

to be addressed. These are as follows:

1. Issue of Preventive Detention

Under Section 6 of the PPO Bill 2014, the SecretaryMinistry of Interior or Grade 21 or above officer mayorder ninety (90) days preventive detention uponsuspicion that the person is or may be involved in terroristactivities. An objection has been raised that this iscontrary to the fundamental rights contained in theConstitution as a person's liberty is at the discretion of anexecutive officer. This objection is not correct. In variouslaws dealing with terrorism promulgated around theworld, there are provisions for preventive detention and

the detention is based on the 'reasonable suspicion' of theexecutive concerned.

The main issue is whether there is a watchdog in case thediscretion available with the Secretary Ministry ofInterior or other authorized officer to detain someone isabused.

The protection against abuse of this power is provided inthe Constitution itself. The High Court under Article 199and the Supreme Court under Article 184(3) have ample

powers of judicial review. There are many cases ofPakistani jurisdiction which specify that grounds todetention must be reasonable and based on an objectivestandard and the decision to detain is subject to thescrutiny by the Courts. This provides an ample safeguard

and protection of the fundamental rights of the citizensfrom abuse.

2. Shoot at sight

Hue and cry has been raised that Section 2 of the PPO2014 gives the power to a police officer and the armedforces' personnel to shoot at sight. This is not a correctreading of Section 2. The firing has been made legal if a

police officer finds someone committing a scheduledoffence and there is reasonable apprehension that death,grievance, hurt or destruction may occur. The purpose isto enable the police officer to shoot the terrorist in case theterrorist is about to detonate a bomb. This power to fire is

not a judicial killing or shoot at sight as it is being portrayed. This power is to enable the persons responsiblefor guarding the lives and property of people to act on thespot and prevent, for example, a bomb blast. If the poweris abused, again there is a legal check namely the personabusing this power is liable for criminal action and

prosecution in a court of law.

3. Power to Armed Forces

Another objection is that the power is being given toarmed personnel under this Section 2 to fire upon those

persons committing scheduled offences of terrorism.This power to the armed forces can be regulated better if

an amendment is made in Section 2 that “Th is applies toonly those armed personnel who are deployed for law

enforcement in a specif ied area or combating terrori sm

and not general ly .” This will allay the fears that the Armyhas been given police powers in toto. In the amendmentcarried out by the National Assembly, such a provisionhas now been added.

4. Definition of “Scheduled Offences”

It has been found in the past that because the definition of“scheduled offences” has been made very wide, theCourts dealing with Anti-Terrorism Act 1997 have beenoverwhelmed with cases which do not stricto senso

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