With Pakistan’s ‘war on terror’ in North Waziristan preoccupying everyone’s mind, passage of the much criticised Protection of Pakistan Ordinance (PPO) through the National Assembly and its promulgation as Pakistan Protection Act (PPA) 2014 seems to have largely gone unnoticed . Yet, even though the government has taken pains to explain that objections to certain provisions contained in the previous PPO had been rectified in the present PPA, those opposing introduction of the same aren’t the least impressed. According to the detractors of this Act, the changes made in the PPA are merely cosmetic in nature and have failed to address the main areas of concern, which are the gross suppression of citizen rights and grant of sweeping powers without any accountability to the security forces as well as the law enforcement agencies. Member of National Assembly Jamshed Dasti has already challenged the PPA in Islamabad High Court on the grounds that it violates Articles 4, 9 and 10 of the constitution. The Jamat-e-Islami too has petitioned the Supreme Court of Pakistan to strike down this ‘black law’ on the grounds that it not only violates the constitution, but is also ‘un- Islamic’ as it “grants police permission to enter anyone’s house without warrants.”
Asma Jehangir, the former chairperson of the Human Rights Commission of Pakistan (HRCP) and an eminent lawyer herself, strongly believes that by giving extraordinary powers to the security forces, the PPA could well end up being used against anyone considered anti-establishment – be it dissidents, politicians, journalists or even progressive activists. However, what according to Ms Asma is most disturbing is that with the promulgation of the PPA, the “Parliament and media are being undermined.” Many Human Rights activists and jurists too have raised serious objections to the ‘draconian’ nature of the PPA and this is certainly a matter for concern. However, it would be unfair to condemn the PPA without considering the views of those who are support this Act. Those who are in favour of the PPA claim that with the additional powers and statutory cover provided to security forces and law enforcement agencies engaged in fighting terrorists by this Act, they would now be in a much better position to effectively deal with the scourge of terrorism. While speaking on this Act at the Federal Judicial Academy during his talk on “Testing vires of PPA on the touchstone of constitution,” the Federal Judicial Academy Director General Dr Faqir Hussain has given an insight into the government’s viewpoint on the inescapable requirement of this act. Dr Hussain has defended the PPA by stating that “Since the country is now confronted with such an extraordinary situation, the government is compelled to take certain steps and measures which can improve the law and order situation, protect life and property and contain the spate of subversive and anti–State activities.”
Minister for Science and Technology Zahid Hamid, who moved the bill in the National Assembly on behalf of Minister for Interior Chaudhry Nisar Ali Khan, said that promulgation of the PPA “will send a message that the government stands with the military in the operation against terrorists in FATA.” There is no doubt that given the “extraordinary situation” prevailing in Pakistan, something meaningful needs to done immediately to restore normalcy, even if amounts to taking certain extreme steps. It is also a fact that since existing legal framework caters for addressing infringements by law abiding citizens, the same cannot be used effectively to bring terrorists to book as they have no regards for the law of the land. So, it is but logical for any State to enact laws providing the security forces and law enforcing agencies with ‘special’ powers to effectively deal with the scourge of terrorism and Pakistan has just done this. However, promulgation of any ‘special’ laws which give ‘sweeping powers’ to the security forces and law enforcement agencies and that too by removing the vital element of accountability by providing them ‘statutory cover’ for their actions is fraught with the dangers of its misuse. Islamabad is well aware of the inevitability this danger as it has all along been accusing New Delhi for the ‘misuse’ of anti-terror laws by its security forces in Kashmir!
It is therefore surprising that the very National Assembly which has repeatedly accused New Delhi of arming its security forces with “draconian laws” to ‘terrorise’ the people in J&K, has itself passed the PPA, the provisions of which, leaves the dreaded Indian Armed Forces Special Powers Act (AFSPA) miles behind! Anyway, the intention here is not to compare the two Acts but only to convey that if the Indian security forces, armed with AFSPA can create havoc, then what makes the Pakistani legislators who passed the PPA so confident that their own security forces would not do the same? Even the most ardent supporters of the PPA will admit that the promulgation of this contentious law blindly follows the ‘Doctrine of Necessity’ or the ‘Bracton’s Maxim’. Conceived by medieval jurist Henry de Bracton (1210-1268), this maxim states, “that which is otherwise not lawful is made lawful by necessity.” The Federal Judicial Academy Director General Dr Faqir Hussain’s explanation clearly confirms this apprehension as he has tried to justify the rationale behind creation of the PPA by suggesting that ‘desperate times call for desperate measures’. Commenting on the PPO that has now become the PPA, Brad Adams, the Executive Director Human Rights Watch Asia Division had said that “Pakistan has a long history of abuses of suspects in detention and should reject this vague and overbroad counterterrorism law.” Adams is an eminent lawyer who has had a long innings with the UN in an advisory capacity on Human Rights issues in Asia and his observation, even though unpleasant, cannot be dismissed as being ‘misplaced’ by the legislators in Pakistan.
While the PPA may not have any direct effect on the people of Kashmir, but by approving a law which provides ‘statutory cover’ to security forces for acting on the nebulous paradigm of ‘reasonable evidence’, Islamabad has lost its moral standing as a champion of Human Rights and can no longer denounce New Delhi for arming its security forces with ‘draconian’ and ‘black’ laws in Kashmir. The PPA permits search of premises without any search warrants, prolonged detention of ‘suspects’ without assigning any reasons or disclosing their whereabouts and opening of fire by a police officer not below the rank of BS-15. The most worrisome ingredient of the PPA is that while a ‘suspect’ can be apprehended merely on the basis of ‘reasonable evidence’- the suspect is deemed ‘guilty’ till he himself proves his innocence. Thus, with the enactment of the PPA, Pakistan has joined the ‘exclusive club’ of democratic nations that legitimise the use security forces by the State as an instrument of terror against its own people! Surely, the introduction of this Act must have come as a big relief to a beleaguered New Delhi, as it is now it has the benefit of deflecting international criticism against its own draconian laws by reiterating their ‘inescapable’ requirement and giving the example of the PPA. And now New Delhi can conveniently defend its ‘black’ laws by saying- ‘what is good for the goose is good for the gander’!
Tailpiece: One of the most memorable scene from the mid- seventies Hindi blockbuster movie ‘Deewar’(The Wall) is one in which Amitabh Bachan, playing the role of a underworld Don confronts his brother and listing out his worldly possessions, tauntingly asks him as to what does he have? Shashi Kapoor, who plays the role of Amitabh Bachan’s brother and is a Police officer in the movie, solemnly replies, “Merey pass Maa hai!” (I have my mother with me!) And this leaves Amitabh Bachan speechless. Fast forward to 2014 and visualise this imaginary scene- Indian Prime Minister Narendra Modi tells his Pakistani counterpart, “I have the J&K Public Safety Act and the Armed Forces Special Powers Act” and then, tauntingly asks Nawaz Sharif, “What do you have?” Nawaz Sharif remains unruffled and in a calm voice replies, “I have the Pakistan Protection Act!” Modi is left speechless as his combined ‘possessions’ cannot match what Sharif has. A humiliated Modi fades away from the screen and the scene ends with a close-up of Sharif giving a victorious smile!