Misconceptions about the Protection of Pakistan Ordinance
If legal system is to be properly revamped, it is not just matter of promulgating law but rather its implementation.
The writer is an Advocate of the Supreme Court
The only thing wrong with this law is its name — it should be ‘Protection of Pakistan’s Citizens Act’. Many people, mostly politicians, are claiming that this law violates fundamental rights and gives immense powers to armed forces, without actually pointing out which human right is being contravened. I want to clear the controversy: this law is about giving necessary powers to investigating agencies to meet exceptional circumstances faced by Pakistan and to make necessary improvements in the legal system so that proper evidence is presented in the courts.
No doubt, the constitution is the supreme law and fundamental rights are inalienable. It is rightly said that human rights are antecedent to the constitution and in this respect, the parliament’s sovereignty is limited. If the parliament makes a law which is against basic liberties, it will be void and would be declared so by the courts.
But there is another truth, which is that the state comes before the constitution, law and human rights! If there is a threat to the country then there is no time to discuss legal niceties; people have to unite and accept the fact, without argument, that there is a need for laws, howsoever very harsh or rigid, which allow maximum leverage to the law-enforcing agencies and courts to bring perpetrators of terrorism to justice.
Such laws may not strictly be kosher — they may encroach upon fundamental rights. But extraordinary situations need extraordinary laws. Abraham Lincoln, at one stage, when the US was faced with civil war, decided to suspend the writ jurisdiction of the US courts. He defended this decision by saying that, “state becomes before the constitution”.
Many countries in the world have had to make laws to deal with terrorism. The US has a great tradition of enforcing liberties. Their courts have rendered landmark judgments on due process for trials. However, when the US as a nation faced terrorism threats (which, when compared with the dangers to Pakistan, are minimal), it gave up all its concepts of individual freedoms and made and enforced the Patriot Act. Although the Patriot Act is draconian by all standards, yet all political parties and civil society stood united and their courts did not interfere. Even the functioning of Guantanamo Bay and tortures like waterboarding had been accepted! Their decision was that the country comes first.
Similarly, India is the world’s largest democracy and there is no doubt that constitutional rights are fully guaranteed there. However, when faced with threats, its parliament did not hesitate in promulgating the Terrorist and Disruptive Activities (Prevention) Act (TADA). TADA has been criticised by all human rights activists and organisations as being against all principles of individual rights, yet the nation stood united behind this law because they felt that the country needed such drastic legislation. India’s Supreme Court also did not intervene. The law still exists and continues.
Other nations too, including the United Kingdom, have promulgated such laws arming investigators with powers. The New York Federal Court, which is one of the most respected Federal Courts in US, recently decided that if intelligence agencies have a reasonable suspicion that force is required against a person involved in terrorist activities, including a US citizen, then Courts will believe them.
In Pakistan, there is an even greater threat. Historically, we have experimented with various laws to deal with terrorism. The Anti-Terrorism Act of 1997, to which various amendments were made in compliance with the directions of the Supreme Court of Pakistan, has failed in its objectives and according to reports, the acquittal rate of the accused is more than 75 per cent. Practically, this law is ineffective, which clearly proves that there is need for stricter legislation. In Pakistan, there is genuine fear that if the legal system is not changed to meet the threats immediately, it will be too late to do anything about it later. Those who want to usurp the Constitution will become too powerful and unstoppable. In fact, thousands of people have died and yet, only a few have been convicted. The gains made in battlefields cannot be lost in courtrooms due to inadequacy of laws.
The nation needs to rally together and unite as one. There is no need for opposition for the sake of opposition. If we do not become part of the solution now, we will all become part of the problem soon.
For the courts, too, there is a very difficult task ahead as judges are guardians of human rights and have a natural instinct to protect citizens from abuse. Yet, the country is faced with an exceptionally dangerous situation, and courts will have to keep a balance during this temporary period so that investigating agencies involved in anti-terrorist activities are given maximum leverage allowable in law, while ensuring that the powers conferred by these laws are not abused in utter violation of fundamental rights.
In the end, if the legal system is to be properly revamped, it is not just a matter of promulgating a law but rather its implementation. The main practical problems are poor policing, lack of proper witness, judge and prosecution protection programmes and lack of proper prosecution training. The parliament must ensure that adequate provisioning is made for all of the above. Finally, the government must ensure that instead of being used for Metro Bus projects, funds are properly allocated for the implementation of this law.
Published in The Express Tribune, April 26th, 2014.
No doubt, the constitution is the supreme law and fundamental rights are inalienable. It is rightly said that human rights are antecedent to the constitution and in this respect, the parliament’s sovereignty is limited. If the parliament makes a law which is against basic liberties, it will be void and would be declared so by the courts.
But there is another truth, which is that the state comes before the constitution, law and human rights! If there is a threat to the country then there is no time to discuss legal niceties; people have to unite and accept the fact, without argument, that there is a need for laws, howsoever very harsh or rigid, which allow maximum leverage to the law-enforcing agencies and courts to bring perpetrators of terrorism to justice.
Such laws may not strictly be kosher — they may encroach upon fundamental rights. But extraordinary situations need extraordinary laws. Abraham Lincoln, at one stage, when the US was faced with civil war, decided to suspend the writ jurisdiction of the US courts. He defended this decision by saying that, “state becomes before the constitution”.
Many countries in the world have had to make laws to deal with terrorism. The US has a great tradition of enforcing liberties. Their courts have rendered landmark judgments on due process for trials. However, when the US as a nation faced terrorism threats (which, when compared with the dangers to Pakistan, are minimal), it gave up all its concepts of individual freedoms and made and enforced the Patriot Act. Although the Patriot Act is draconian by all standards, yet all political parties and civil society stood united and their courts did not interfere. Even the functioning of Guantanamo Bay and tortures like waterboarding had been accepted! Their decision was that the country comes first.
Similarly, India is the world’s largest democracy and there is no doubt that constitutional rights are fully guaranteed there. However, when faced with threats, its parliament did not hesitate in promulgating the Terrorist and Disruptive Activities (Prevention) Act (TADA). TADA has been criticised by all human rights activists and organisations as being against all principles of individual rights, yet the nation stood united behind this law because they felt that the country needed such drastic legislation. India’s Supreme Court also did not intervene. The law still exists and continues.
Other nations too, including the United Kingdom, have promulgated such laws arming investigators with powers. The New York Federal Court, which is one of the most respected Federal Courts in US, recently decided that if intelligence agencies have a reasonable suspicion that force is required against a person involved in terrorist activities, including a US citizen, then Courts will believe them.
In Pakistan, there is an even greater threat. Historically, we have experimented with various laws to deal with terrorism. The Anti-Terrorism Act of 1997, to which various amendments were made in compliance with the directions of the Supreme Court of Pakistan, has failed in its objectives and according to reports, the acquittal rate of the accused is more than 75 per cent. Practically, this law is ineffective, which clearly proves that there is need for stricter legislation. In Pakistan, there is genuine fear that if the legal system is not changed to meet the threats immediately, it will be too late to do anything about it later. Those who want to usurp the Constitution will become too powerful and unstoppable. In fact, thousands of people have died and yet, only a few have been convicted. The gains made in battlefields cannot be lost in courtrooms due to inadequacy of laws.
The nation needs to rally together and unite as one. There is no need for opposition for the sake of opposition. If we do not become part of the solution now, we will all become part of the problem soon.
For the courts, too, there is a very difficult task ahead as judges are guardians of human rights and have a natural instinct to protect citizens from abuse. Yet, the country is faced with an exceptionally dangerous situation, and courts will have to keep a balance during this temporary period so that investigating agencies involved in anti-terrorist activities are given maximum leverage allowable in law, while ensuring that the powers conferred by these laws are not abused in utter violation of fundamental rights.
In the end, if the legal system is to be properly revamped, it is not just a matter of promulgating a law but rather its implementation. The main practical problems are poor policing, lack of proper witness, judge and prosecution protection programmes and lack of proper prosecution training. The parliament must ensure that adequate provisioning is made for all of the above. Finally, the government must ensure that instead of being used for Metro Bus projects, funds are properly allocated for the implementation of this law.
Published in The Express Tribune, April 26th, 2014.