THERE has been significant debate recently over the proposed ‘shoot to kill’ power being granted to the Rangers for operations in Karachi.

Rhetoric-filled arguments have been put forth but little discussion has taken place regarding the law and its implications.

What is more troubling is the misunderstanding promoted by the term, ‘shoot to kill’. The term implies a James Bond-esque freedom to kill at will.

This cannot be the case. Police powers in relation to the use of lethal force are circumscribed by statutory and judicial limits in all legal systems. In Pakistan, unfortunately, a paradox exists.

On the one hand, we have a well-entrenched principle of private defence (self-defence) under the Pakistan Penal Code (PPC), available to all persons. This permits the use of force, even lethal force, to defend one’s person, family, even a stranger.

On the other hand, we have Section 5(2)(i) of the Anti-Terrorism Act, 1997, which only allows the law enforcement entities to fire upon a suspected terrorist, “when fired upon”, first.

While the proposal to enhance the powers of law enforcement bodies is still being debated, it may be prudent to explore the contours of the so-called ‘shoot to kill’ powers and assess the limits we need to impose on such powers.

Section 5(2)(i), as it originally stood in 1997, allowed an officer of the police to shoot, after giving due warning, an individual committing a terrorist act, or who in all probability was likely to commit such an act. These powers were wide and the Supreme Court, in the Mehram Ali case rightly declared this section as such.

Following the Supreme Court’s ruling, the subsection was amended but did not go far enough, indeed did not seem a genuine attempt to adhere to the court’s decision. Constitutional petitions No. 22 and 25 of 1999 reiterated the judiciary’s concerns and declared the amended section invalid as well.

Subsequently, Section 5(2)(i) was amended by the Anti-Terrorism (Amendment) Ordinance, 2001 to its present form. Unfortunately, this exercise in legislative engineering had some unintended consequences.

What the legislature took from the Supreme Court’s ruling in Mehram Ali and the constitutional petitions was myopic.

Instead of redrafting the entire sub-section to place well-crafted limits on the discretion of law enforcement bodies to employ deadly force, the legislature made the use of force contingent upon being fired upon first, copying almost verbatim the court’s language in Mehram Ali.

The insertion of the words, “when fired upon”, changed the very nature of the section from a provision empowering preventive action to one providing authorisation to engage in self-defence. The latter already existed as the ‘Right of Private Defence’ under the PPC.

The phrasing, “when fired upon” is significantly more limited than the right of private defence under the PPC. The ATA, being a special law with overriding effect, would displace the right of private defence under the PPC with the more stringent requirements of Section 5(2)(i).

The consequences of such an approach are catastrophic and, in essence, render members of our law enforcement bodies mere human shields.

The Supreme Court’s intentions in Mehram Ali cannot be doubted. They aimed to limit the discretion available to law enforcement bodies to use force arbitrarily. Unfortunately, the vehicle employed to translate these intentions into law was most inadequate — those three simple words.

The ATA’s terminology, “when fired upon”, only limits when the police may use force, ie when fired upon, but Section 5(2)(i) does not limit the extent of the force used.

Arguably, this is more worrisome and opens the door to arbitrariness and abuse. If Section 5(2)(i) is to be equated with self-defence then the link ought to be strengthened. The provisions of the ATA need to be brought in consonance with the requirements of the PPC in relation to the right of private defence.

Through such an approach, the question of when the right to use force commences is answered by Section 102 of the PPC which reads:

“The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.”

Section 102 and the case law derived from it are unambiguous — any individual, including members of the police, need not wait to be attacked or sustain injuries to take measures to defend themselves.

Furthermore, this right is not limited to defending one’s own person but extends to the protection of family and even strangers.

As to the extent of force that may be used, the right of private defence allows the use of lethal force only as a last resort, when there is no other course of action open to the individual.

According to Section 99 of the PPC “the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence”.

The final arbiter of what is lawful force in the circumstances remains the court. Yet even then, it is settled law that the individual, in the heat of the moment, is not required to weigh his action in ‘golden scales’.

The right of private defence is where the discussion on police powers should begin. The ATA, as amended, has effectively undermined this. Mehram Ali should not be read as displacing the right of private defence under Section 96-106 of the PPC.

When the armed forces or civil armed forces are called in aid of civil power under Section 4 of the ATA, there is an underlying assumption that a serious law and order threat already exists. It is in this context that, at the very least, self-defence should be available to them.

The writer is a research associate at the Research Society of International Law, Pakistan. This article is based on research conducted for RSIL’s upcoming report on the Anti-Terrorism Act 1997.

ovesanwar@rsilpak.org