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MORE LAWS, LESS SECURITY

AN ANALYSIS OF THE PROTECTION OF PAKISTAN ORDINANCE AND THE INVESTIGATION FOR FAIR TRIAL ACT

The Investigation for Fair Trial Act, 2013

The Investigation for Fair Trial Act, 2013 was formally assented to by the President of Pakistan on 20th February, 2013 after its approval from the National Assembly and the Senate of Pakistan. The law is conceptually progressive as it tries to cater to latest technologies, but is procedural in its domain. It provides for procedure for obtaining warrants for interception and for surveillance. The procedure, however, is cumbersome in many respects. In the first place, its authorization and notification criteria are very high as no less than the Ministry of Interior is involved in the process. Secondly, the power to issue warrant rests with the Judge of a High Court. Thirdly, the authorized officer for initiating the process under the law is stated to be an officer not below the rank of a BS-20 officer. Finally, the Rules provide role for the office of Minister of Interior to take final decision before a case is authorized to be moved to a High Court for issuance of warrant. The analysis of the aforementioned characteristics shows that the process envisioned by the law is hefty given the actual working of the official business. The highly central and bureaucratic approach taken in the law is not likely to yield results in the age of robust technology. Real time authorizations and fast track procedures are the need of time; delayed and top-heavy procedures may reduce the law into an irrelevant piece of legislation.

THE PROTECTION OF PAKISTAN ORDINANCE, 2013 

The Protection of Pakistan Ordinance, 2013 was promulgated in October 2013. It was once again promulgated in January 2014 with some amendments which were passed by the National Assembly on 7th April 2014. The law is substantive in nature and envisages a dedicated criminal justice system with separately notified prosecutor, judges and in-charge regional headquarters. The offences covered by the Ordinance are referred to by the mechanism of Schedule and by reference to other legislations. The Scheduled legislations are most related to defence establishment with the inclusion of Anti-Terrorism Act, 1997. Another important feature is that there is a reversal of proof requirement in the law, which puts the onus of proof for not being engaged in non-state activities on the person who is being prosecuted under the law. The requirement of reversal of proof is not new to criminal law of Pakistan; previously, such a presumption of committing offence has been placed on an accused under the National Accountability Ordinance, 1999. The logic, however, in the corruption cases for reversal of proof is that it is very difficult to gather evidence of graft and besides by the mere comparative analysis of known means of income and the way of living of a person, such a presumption can be entertained; no such parallel, it may be noted, is available in cases of waging war against Pakistan.

Here two points warrant special mention:

1. Section 8(5) of the PPO 2013 provides that an officer of BS-18 of Pakistan Administrative Service or Provincial Management Service may be appointed as a Special Judicial Magistrate for the cases registered under PPO; the propensity of Pakistan Administrative Service (erstwhile DMG) to avail a backdoor entry into the judiciary has once again been evinced by this part of the legislation. It may be noted that Article 175 of the Constitution of Pakistan 1973 repels any such attempt by the executive as strict separation of powers between judiciary and executive has been propounded by the law and duly interpreted in series of judgements of the Supreme Court of Pakistan.

2. Section 3 of the PPO empowers a member of the Armed Forces and the Civil Armed Forces to use powers of a police officer. The empowering clause, especially in favour of Armed Forces, is the first of its kind as the conventional contingent requirement of ‘in aid of civil administration’ has been omitted.

The Anti-Terrorism Act had been subject to many amendments since its enactment in 1997. The latest amendments were introduced in 2013 whereby besides expanding the definition of terrorism and by nationalizing the international law of counterterrorism, new procedural amendments were also introduced to the primary law on antiterrorism in Pakistan. Lately, two new laws namely the ‘Investigation of Fair Trial Act, 2013’ and the ‘Protection of Pakistan Ordinance 2013’ have been added to the package of terrorism laws. The instant article will present a brief resume of the two legislations along with analyses thereupon, and discussion on some related issues.

Criticism

Spate of criticism is in the air, especially with respect to PPO. Following are the basis of criticism on the new laws:

  1. Human Rights Watch has criticized the law on the grounds that it is incompatible to International Law. HRW argues that Pakistan ratified the International Covenant on Civil and Political Rights 1966 (ICCPR) in 2010. The ratification made ICCPR operative for Pakistan. In form of PPO, it states, the Government of Pakistan is breaching its obligations as contained in Articles 9 (protection against arbitrary arrest), 17 (privacy of home), and 14 (right to be presumed innocent and to fair trial) of the ICCPR.
  2. The opposition parties have criticized it on the ground that it is contrary to Fundamental Rights as envisaged in the Constitution of Pakistan and on the ground that there is potential of the laws being misused.
  3. The PPO is against the judgements of the Supreme Court of Pakistan. Specifically, two judgements of Mehram Ali vs Federation of Pakistan (PLD 1998 SC 1445) and Liaquat Hussain vs Federation of Pakistan (PLD 1999 SC 504). The former examined the constitutionality of ATA while the latter appraised the vires of the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998, which provided judicial powers to military officers and was introduced to expedite the adjudication of heinous cases and was linked to ATA. In Mehram Ali Case, the SC found that many parts of the ATA were unconstitutional and ordered the government to weed the legislation of unconstitutional legal provisions. The Liaquat Hussain Case met the same fate with the added punch that the whole legislation of aid of civil power was struck down.
  4. That the PPO is not compatible to the National Internal Security Policy 2014-18. The NISP envisioned a Comprehensive Response Plan (CRP) in which Legal Reform was reflected as a component. Paras 27 and 28 of NISP dealt with legal reform, which essentially stated that:
  5. Review of the existing laws and their compatibility with the Fundamental Rights of the citizens of Pakistan;
  6. Detailed consultation with stakeholders and research to recommend futuristic legal framework to fight terrorism.

The Federal Government was, as per NISP, bound to keep the legislations compatible with Fundamental Rights as contained in the Constitution of Pakistan and that any legislation should have been properly researched and consulted before being tabled and passed as a law.

  1. The introduction of PPO will lead to forum shopping and feeble prosecution as there was no need of PPO in presence of the Anti-Terrorism Act, 1997.

Concluding Remarks

The utility of the new laws in their existing form will be decided by the time and the acceptance, if any, by the judicial system of Pakistan. The two laws are interesting insofar as they add to the already handful package of terrorism laws; however, excessive legislation leads to superfluous structures and thin implementation. Time is ripe for Pakistan to review the plethora of laws on a single subject and to come up with efficient and effective ways of implementing laws. Besides, the areas where there are no legal frameworks operative (e.g., the domain of cybercrimes where the extant legislation has expired), effective legislation may be introduced as early as possible.

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