Wrangling over the PPO
Best course would be to let parliamentarians mull over PPO threadbare and turn it into an agreeable document.
The writer is a public policy analyst and has served as Punjab home secretary and interior secretary
The government has been able to push the Protection of Pakistan Ordinance (PPO) through the National Assembly, but is sure to face stiff resistance while steering it in the senate. The opposition has rallied around to block the law in its present form. The government's anxiety and haste is understandable as it wishes to arm and further empower the law enforcement agencies in their war on terror. It is also a moot point as to why the MQM, the PPP and the ANP are opposing the law despite the fact that they have been the worst victims of the war on terror. Their fear stems from the likely abuse and misuse of the law. Its passing may also send a bad signal in Balochistan, which is already going through multilayered turmoil. Closer coordination between the government and the opposition while working on the bill would have been the ideal option. A bipartisan issue has been made controversial owing to this ineptness. The flurry around the government’s unilateral flight and the opposition’s resistance misses the crucial point: the dilemma between ensuring national security and an individual's freedom requires better contextual underpinning.
The PPO, is in a way, an upgradation of the existing Anti Terrorist (Amendment) Act 2013, which includes quite a few stringent provisions regarding longer preventive detention and powers to hold back vital information about custody of suspected internees. The most controversial clauses in the PPO relate to Section 3 and Section 6, which give wide powers to law enforcement agencies to open fire on suspects of terrorist acts, who have or are likely to commit scheduled offences, as well as enabling the government to detain a suspect for 90 days.
Events around the world have compelled nation states to tighten their security. Stringent laws impinging on human rights have been passed and civil liberties no more remain inviolable. The state is constrained to ingress into civil liberties as a trade-off. The exercise of such powers, however, warrants a closer judicial oversight to strike a fair balance between national security and personal freedom.
Democratic societies that are constrained to resort to such a stringent legal regime invariably make provisions for a 'sunset clause', indicating a cut-off date for such a law to abate. The US Patriot Act, promulgated in the wake of 9/11, not only had this clause, but also gave vast powers of arrest, detention and search to the relevant agencies without advanced judicial notice. The law gave powers to detain immigrant internees for an indefinite period.
In India, in the wake of attack on its parliament in 2002, the Prevention of Terrorism Act was promulgated, a highly stringent law giving powers to the government for detaining an internee for 180 days before framing a charge. It also enabled the withholding of the identity of witnesses and their confessions made before the police were made admissible under the law. It was a highly controversial law and was blocked in the Rajya Sabha, but was passed in the joint session of the Indian parliament. The law was taken to the Indian Supreme Court but it upheld the government’s stance, considering the exceptional circumstances being faced by the country. The law was repealed in 2004 and was succeeded by yet another law, the Unlawful Activities Prevention (Amendment) Act, 2008, which while being as stringent, did provide scope for judicial oversight.
The tenor of the detention clause in the PPO underscores that it is subject to Article 10 of our Constitution. The Article, however, makes provision for a review board regarding detentions beyond 90 days. The moot point, however, is that preventive detention is a subject listed in the concurrent list in the Constitution, which was deleted after the passage of the Eighteenth Amendment. As a result, all such residual subjects now fall under the ambit of the provinces. One is not certain whether this aspect was looked into while floating the PPO, although under Article 142 (b) of the Constitution, criminal law and criminal procedures are the shared responsibilities of the federation and the provinces.
Provisions like opening fire on suspects even on reasonable suspicion are certainly fraught with danger and required more deliberation, considering the trigger-happy propensity of our law enforcement agencies even in quelling urban unrest. The law already makes provisions for the use of force commensurate with the threat faced where necessary, and it is rightly feared that there is scope of abuse of this aspect of the law.
The PTI is considering the matter of challenging the PPO in the courts, while the PPP is willing to thrash it in parliament. The best course would be to let the parliamentarians mull over it threadbare and turn it into an agreeable document.
Published in The Express Tribune, April 22nd, 2014.
The PPO, is in a way, an upgradation of the existing Anti Terrorist (Amendment) Act 2013, which includes quite a few stringent provisions regarding longer preventive detention and powers to hold back vital information about custody of suspected internees. The most controversial clauses in the PPO relate to Section 3 and Section 6, which give wide powers to law enforcement agencies to open fire on suspects of terrorist acts, who have or are likely to commit scheduled offences, as well as enabling the government to detain a suspect for 90 days.
Events around the world have compelled nation states to tighten their security. Stringent laws impinging on human rights have been passed and civil liberties no more remain inviolable. The state is constrained to ingress into civil liberties as a trade-off. The exercise of such powers, however, warrants a closer judicial oversight to strike a fair balance between national security and personal freedom.
Democratic societies that are constrained to resort to such a stringent legal regime invariably make provisions for a 'sunset clause', indicating a cut-off date for such a law to abate. The US Patriot Act, promulgated in the wake of 9/11, not only had this clause, but also gave vast powers of arrest, detention and search to the relevant agencies without advanced judicial notice. The law gave powers to detain immigrant internees for an indefinite period.
In India, in the wake of attack on its parliament in 2002, the Prevention of Terrorism Act was promulgated, a highly stringent law giving powers to the government for detaining an internee for 180 days before framing a charge. It also enabled the withholding of the identity of witnesses and their confessions made before the police were made admissible under the law. It was a highly controversial law and was blocked in the Rajya Sabha, but was passed in the joint session of the Indian parliament. The law was taken to the Indian Supreme Court but it upheld the government’s stance, considering the exceptional circumstances being faced by the country. The law was repealed in 2004 and was succeeded by yet another law, the Unlawful Activities Prevention (Amendment) Act, 2008, which while being as stringent, did provide scope for judicial oversight.
The tenor of the detention clause in the PPO underscores that it is subject to Article 10 of our Constitution. The Article, however, makes provision for a review board regarding detentions beyond 90 days. The moot point, however, is that preventive detention is a subject listed in the concurrent list in the Constitution, which was deleted after the passage of the Eighteenth Amendment. As a result, all such residual subjects now fall under the ambit of the provinces. One is not certain whether this aspect was looked into while floating the PPO, although under Article 142 (b) of the Constitution, criminal law and criminal procedures are the shared responsibilities of the federation and the provinces.
Provisions like opening fire on suspects even on reasonable suspicion are certainly fraught with danger and required more deliberation, considering the trigger-happy propensity of our law enforcement agencies even in quelling urban unrest. The law already makes provisions for the use of force commensurate with the threat faced where necessary, and it is rightly feared that there is scope of abuse of this aspect of the law.
The PTI is considering the matter of challenging the PPO in the courts, while the PPP is willing to thrash it in parliament. The best course would be to let the parliamentarians mull over it threadbare and turn it into an agreeable document.
Published in The Express Tribune, April 22nd, 2014.