Reservations about the law do not mean that all of it should be thrown out of the window. These are parts of the law which may be useful. For instance, offences relating to terrorism may be tried in secret locations, judges may be given special protection, etc. Indeed, under these unusual circumstances, judges should have worn masks and tried prisoners in high security prisons from day one
BY DR TARIQ RAHMAN
If one removes the sugar-coating of the word “Pakistan” from the ‘Protection of Pakistan Ordinance 2013,’ (and substitutes “whom,” it turns into a question with a hydra-head. The question is “exactly whom does the law intend to protect?” The government says it is ‘to provide for protection against waging of war against Pakistan’. These are the militants (under the TTP umbrella or independent groups) and the dissident Baloch. Ostensibly, the idea is to protect ordinary Pakistanis against such people who are defined as “combatant enemy”. The law also defines “enemy alien” as “a person who fails to establish his citizenship of Pakistan.” These, presumably, are the foreign fighters – the Chechens, Uzbeks, Afghans, etc fighting with the Pakistan Army. However, many Biharis, Bangladeshis and Burmese labourers and especially women, too, cannot prove their citizenship as they were smuggled into Pakistan. Would they, too, be the targets of this draconian law?
On the face of it, the government appears to have a point when it argues that we need a special law to deal with a special situation. The basic assumption is that the law will be applied in good faith and only against real evil-doers. Unfortunately, laws are never applied in good faith. If a law has grey areas – that is, if it can be manipulated against innocent people easily – it will be manipulated. It will become a black law. We know how many of our laws, promulgated to cater to religious beliefs or sensitivities, were misused by unscrupulous people. Thus, people coveting a rival’s land can easily accuse him of blasphemy. Or, what is very common, the son kills his sister for “honour” and the father pardons him under the “Qisas and Diyat” law. The intention of the law was excellent, i.e, to allow individuals and families to reach such settlements with offenders where it is felt that hanging them for homicide would be too cruel. Even in cases of manslaughter, such as killing someone inadvertently in a traffic incident, it is humane to have the possibility of not stuffing the poor driver (if repentant) in jail and ruin his or her life. So, while the spirit behind this law was correct, its application was flawed.
In the years after Ziaul Haq, we have seen so many cases of the abuse of laws that we are wary of creating yet another law which can let the gates of hell open. This history of abuse is etched in the collective memory of those of us who bother about things like human rights. That is why it is necessary not to give the army, police, Rangers or intelligence agencies excessive powers: those of arresting, killing (by firing on them) or keeping them in lock-ups for long periods.
The sections of the law which will be misused are, firstly, that people “likely to commit a scheduled offence” may be fired upon. Secondly, a person can be arrested without warrant upon suspicion. Thirdly, that premises can be broken into without warrant. Fourthly, that accused persons may be detained for 90 days. My fear is that the power given to the armed forces and the police will be misused. One finds that it is misused in the case of nationalists. Let us remember the case of Bengali nationalists, the Sindhis and the Baloch. All were picked up without warrants and sometimes tortured to death. If history is any guide, unfettered powers have always been misused. That is why democracies should not go for these things. The argument that the United States promulgated the Patriot Act and kept prisoners in jails outside the US or even tortured them, is actually an argument against such powers. Such obvious acts of injustice have given America a bad name. Indeed, the factors which increase recruitment to al Qaeda are the use of torture on Muslim suspects and the attacks on Iraq and Afghanistan. All such high-handed practices have harmed America. So why should we follow a bad example.
These reservations about the law do not mean that all of it should be thrown out of the window. These are parts of the law which may be useful. For instance, offences relating to terrorism may be tried in secret locations, judges may be given special protection, etc. Indeed, under these unusual circumstances, judges should have worn masks and tried prisoners in high security prisons from day one. If special courts are required to deal with the backlog and try the cases speedily, this is acceptable in principle though it should be ensured that the courts are not kangaroo tribunals. I would further add that electronic, forensic and circumstantial evidence should be included as witnesses will never give evidence no matter what kind of protection the state offers them. Everybody knows that the state’s protection will not last forever nor is it terribly efficient even when it is there.
The PML-N should be aware that laws like these are also turned against politicians out of power. So, let them be aware. You will say that even in the absence of this law we see the bullet-riddled bodies of the Baloch. That is true but we do raise a din off and on about enforced disappearances. Our courts do talk of the supremacy of law and even ask those in the military and Rangers officials to explain their high-handedness from time to time. In practice, we often function like a police state; let us not do so in legal theory as well. So, for ordinary citizens, if they do not want to see the bullet-riddled bodies of Baloch youth – and I am afraid the Baloch will be targeted more than anyone else – they should be wary. Indeed, anyone who wants a medium of safety for himself/herself should be aware. So let us retain that part of the law which protects judges, witnesses and the police while throwing out that which could imprison or kill just about anybody.
-by arrangement with The Express Tribune