Barrister Ummar Ziauddin
The purpose of promulgation of Protection of Pakistan (Amendment) Ordinance, 2014 (PPO) is to afford “protection against waging of war against Pakistan, prevention of acts threatening the security of Pakistan and for speedy trial of offences”. A state of war or public emergency like we find ourselves in may justify the objective of the state. But the unprecedented measures envisaged in PPO to achieve the objective call into question liberties that are hallmark of a liberal democracy.
The measures designed to meet the exceptionally important objective limiting fundamental rights should be of temporary nature. They should also be both necessary and proportionate. The state must respect the fundamental rights in exercise of its powers. This is where the criticism lies. There are far too many provisions in PPO that rational and fair minded people would find difficult to stomach.
It remains to be seen how learned judges interpret words like “reasonable apprehension” of officer in PPO to prevent a scheduled offence. It is understandably feared that absent any objective-test; the Special Courts employing interpretative latitude may accommodate the positional objectivity of officer, worse yet, even make room for less stringent test of purely subjective assessment of officer in the circumstances to open fire at any person. This spans a broad sweep cover to security forces to justify “acts done in good faith”.
The PPO provides that any officer on “reasonable suspicion” or “credible information” without warrant can make an arrest or enter and search premises or take into possession any property. Suspicion it must be noted is not proof of any wrongdoing. In effect the PPO allows any officer to enter anyone’s house and take him away to be detained indefinitely without trial. In a modern democracy it is of fundamental importance to be free from arbitrary detention at the hands of authorities.
The report submitted to the Special Court by Joint Investigating Team is admissible in evidence against the accused under the PPO. Consequently any incriminating evidence or statements obtained by all kinds of inhumane treatment or outright torture in custody can be used as evidence against the accused during the trial.
The principle of presumption of innocence is indispensable to criminal justice system. In criminal trial, onus lies on prosecution to prove all elements of offence with which the accused is charged. The principle is of supreme significance but is not absolute and may be subject to balanced restrictions. PPO daftly shifts the persuasive burden of proof on the accused. An accused charge with an offence on reasonable evidence against him shall be presumed to be engaged in waging war against Pakistan.
How strong would this presumption be? And how readily would it be displaced? The learned judges would decide this according to facts of each case. This provision, widely and unreasonably worded, on plain reading, imposes on the accused to discharge the burden in order to exonerate him from the charge of “waging war against Pakistan”. It unjustifiably, infringes the presumption of innocence and is not compatible with the statutory right of fair trial. In the last decade, it is opined many criminals and terrorists have gone scot-free due to the week prosecution in Pakistan. Reversing the burden of proof to absolve the poor and neglected prosecution in our country is no solution. In fact it only compounds issues of trial.
Retrospective effect of the PPO will have chilling effect on all the cases of missing persons. In spirit it disposes of all such cases with the stroke of pen. Retrospective penal laws are against the settled norms of rule of law. This provision as sceptically put down in a statement issued by The Human Rights Commission of Pakistan (HRCP) legitimises all illegalities. Similarly Dicey viewed the establishment of Special Courts, in principle, as abhorrent and discriminatory.
The Special Court as envisaged in PPO shall not be open court that is accessible to public and the proceedings shall be kept secret. These Special Courts may very well end up becoming instrument of powerful totalitarian regime with little or no regard to rule of law.
Unjust laws breed contempt against the state. The very purpose of fundamental rights is to withdraw certain subjects from the vicissitudes of political controversy.
The Superior Courts though not specialist in realm of policy making (nor they should be) are well placed to subject this Ordinance to careful scrutiny in order to secure the rights and freedoms protected in the Constitution.
Tailpiece: My friend’s brother was killed in Swat. He was not an officer or a combatant enemy nor an enemy alien.
He was merely another count to statistics. They called him, my friend’s brother, a Collateral Damage. He is one unfortunate story of a family among many—stories, that after this PPO are likely to continue.
The writer is a lawyer based in Islamabad.