Pakistan Protection Ordinance: beware the double-edged sword

Spearhead Analysis – 30.01.2014

By Sarah Eleazar
Research Analyst, Spearhead Research – Pakistan

Pakistan Protection Ordinance 2013Lack of political will vis-à-vis the Taliban has riddled the state ever since it entered a half-baked bargain with the US on the War on Terror. Not only did it take two governments and a decade to own the war as its own, the state’s stance on the matter has consistently been little more than eyewash. The Army having lost thousands of soldiers and its credence to a war the state never owned marched to the barracks waiting for the government to make up its mind.

This time however, the government appears to have stepped out of its state of limbo. Whereas earlier, analysts debated a binary solution to the problem the government has decided to employ a two-pronged strategy.

Prime Minister Nawaz Sharif on Wednesday constituted a four-member committee to spearhead peace talks with the TTP. “Let’s give peace another chance,” he said, without announcing whether he would call off the on-going fight against the scourge in North Waziristan.

This is in good judgement. The prime minister has offered the TTP a fig leaf wrapped in a white flag. Talks cannot proceed unless a cease fire is declared by both sides…that much has been obvious from the start. A military operation in the TTP’s bastion might just rob the anti-state elements in question the position of power they claim to have.

Several members of the TTP shura, in an interview with Dawn News, shared that dialogue would help them gain political legitimacy, the time and space to regroup and the opportunity to engage with the public.

The government might not be prepared to handle the resultant spill of Talibanisation into the mainstream however it has taken precautionary measures by enacting the Pakistan Protection Ordinance 2013.

The ordinance, recently passed in the legislature, promises to address overarching issues related to security of the people, clamping hard on anti-state elements with swift justice and timely action on part of the law enforcement agencies.

Furthermore, the ordinance places the onus of effecting preventive, pre-emptive and coercive measures on the government. By employing law enforcement agencies as tools to carry out its directives vis-à-vis the Interior Ministry, the government has offered the Army and civilian law enforcement agencies the shield of Achilles. And while the shield may appear impenetrable, beware the faulty heel.

Preventive arrests

Section 3 2(b) any police officer , a member of the armed forces or
civil armed forces acting in aid of civil authority may  arrest,
without warrant, any person who has committed a scheduled offence or
against whom a reasonable suspicion or credible information exists
that he has committed, or is about to commit any such act or offence

Warrantless and preventive arrests are not unprecedented…they were previously in vogue with the Kripo in Nazi Germany. The problem with this provision is the leeway of misuse of authority it offers, supplemented by what is quite reminiscent of the American Patriot Act:

Section 3 2(c) any such officer may enter and search, without warrant
any premises to make any arrest or to take possession of any property,
fire-arm, weapon or article used, or likely to be used, in the commission of any scheduled offence.

Section 5 (4) A Special Judicial Magistrate may authorize, from time to time,
the detention of the accused in such custody as such Special Judicial
Magistrate thinks fit for a term not exceeding
ninety days

It is possible that by allowing the judiciary to sanction requests for internment, the government may be leveraging control (and chances of aspersions) away from the police and Army to another branch of the state entrusted with upholding the Constitution supreme, thus bringing in the element of transparency to the process. However, this could be undermined by the following provision:

Section 19 Savings :- No member of the police, armed forces or civil armed
forces acting in aid of civil authority, Prosecutor General, prosecutor, Special Judicial Magistrates or the Judge of a Special Court shall be liable to any action for the acts done in good faith during the performance of their duties.

In other words, the ordinance provides law enforcement agencies [and all those attached with the ordinance] immunity from trial and/or being held answerable for their actions.

Human rights organisations have been lamenting the lack of accountability in the missing persons case for over a decade now. What with the recent discovery of mass graves in Khuzdar, the government could have dealt with the matter somewhat carefully instead of offering blanket immunity to these organisations.

Guilty until proven innocent

The provision, quite reminiscent of the infamous Indian Terrorist and Disruptive Activities (Prevention) Act, lays the burden of proof on the suspect rather than prosecutor.

It can of course be argued that desperate times require desperate measures and the guilty until proven innocent clause is required to patch up gaping holes in the Anti Terrorism Act, the bootlessness of which has led to hundreds of acquittals in the matter.

Protection

The ordinance ensures adequate security to prosecution witnesses, investigating officers, prosecutors, special judicial magistrates and judges of the special courts. The provision might be considered one of the most important and most welcome provisions in the ordinance. Lack of witness protection programmes had effectively limited the possibilities of offering ocular evidence in terrorism cases in court. The arm of the law might be long, but the terrorists’ arms are longer and many. With several Anti Terrorism Court judges and prosecutors removed in the past, the ATA had left much to be desired in terms of safeguards for civilians who chose to take a stand against suspected terrorists.

The measures to offer protection include: “(a) screens may be used during trial to shield witnesses, judges and prosecutors from public view; (b) trials may be held in jail premises or through video link; (c) witness protection programmes may be established by the government through law or rules.”

Conclusion

By implementing the PPO, the government has taken an unprecedented bold step into enemy territory. Instead of simply ordering military operations without shouldering any of the burdens the government has chosen to incorporate the judiciary, police, civil bureaucracy and itself in the programme. They say too many cooks spoil the broth, but they also allow for accountability and transparency on several levels.

This has been missing from military operations in the past. The Army has in the past suffered casualties as well the ire of the masses, civil society and human rights pressure groups. This time around, one hopes that the involvement of all arms of the state will carry the war on terror to its logical end.

At the same time, law enforcement agencies must be careful while exercising the extra powers accorded to it. There is great scope for misuse here. Many infamous provisions of the TADA and Patriotic Act are part of the PPO. This is rotten ice.

These provisions in the PPO have already been challenged in the Supreme Court this week. The petitioner claims that the PPO violates several human rights guarantees enshrined in the Constitution. Whether the SC accepts the PPO for a judicial review, directs the government to amend it or make an exception and declare an emergency remains to be seen. Alea iacta est. An outcome can finally be expected.