DOES the Protection of Pakistan Act strike the right balance between the fundamental rights of citizens and the state’s needs to deliver peace and security to society? All rational Pakistanis would want terrorists to be brought to justice. But the public debate over the PPA has taken place between extreme views across the spectrum.

The armed forces in the midst of our bloody war with the terrorists are distraught at civil society’s obsession with the fundamental rights of terrorists. From this standpoint those who pick a war with the state are not citizens but enemies, and enemies fighting a savage war must only be granted minimal rights promised under the laws of war.

But civil society, cognisant of the state’s role in nurturing the terrorists it is fighting today and the history of abuse of power by states generally, ask whether the state can suspend at will the inalienable rights promised by the Constitution or short-circuit mandatory due process of law.

In the middle are rationalists who see the need for the state to establish its writ despite disastrous past policies. They acknowledge that extraordinary situations (ie thousands of insurgents devouring the state’s sovereignty and citizens’ right to life/liberty) call for extraordinary measures, while being conscious that the state can’t be handed a carte blanche to do as it pleases.

In the journey from Pakistan Protection Ordinance to Pakistan Protection Act, many issues have been addressed.

The hawks are unhappy that the PPA doesn’t go far enough and places curbs on those fighting to save the state from an existential threat. The doves feel that the PPA sets a dangerous precedent by promising order at the expense of the law and fundamental rights. The rationalists see the wrangling between hawks and doves as useful to strike the tenuous balance needed to create required elbow room to fight terror while not denuding citizens of their rights altogether.

Armies fight wars and the police undertake law enforcement within the criminal justice system. What legal paradigm do you use when the army is fighting an armed insurgency in one part of the country and paramilitary forces and police are fighting crime/terror in another part (ie Karachi) also linked to the insurgency? What do you do when the army’s paramount job becomes internal security enforcement and the law does not envisage such a role?

The PPA, the Fair Trial Act, 2013 and the amended Anti-Terrorism Act establish that Pakistan has decided to opt for the criminal justice paradigm while carving out a legal role for the army/intelligence agencies. The missing persons’ problem was caused by the state using khakis and khaki-led agencies to discharge policing and investigation responsibilities without legal acknowledgement. The PPA, FTA and the amended ATA are trying to bring the existing practice within the fold of law.

The key objections to the Protection of Pakistan Ordinance were as follows: labelling citizens as enemy combatants and treating them as aliens; the right to shoot on suspicion; the right to search/arrest without warrant; the right to detain and intern without disclosure and oversight; and the reversal of the burden of proof. In the journey from PPO to PPA, many of these issues have been addressed.

The PPA omits the concept of enemy combatant: there is a definition of enemy alien to cater to foreign fighters (Uzbeks, etc) and there is the definition of militants to cover Pakistanis (the TTP, etc).

Section 3(2)(a) still retains the right to shoot someone who “in all probability is likely” to commit an offence. In short, the right to pre-emptive self-defence or shoot-on-suspicion has been combined with the right to ordinary self-defence and proactive prevention of impending harm.

This pre-emptive shoot-on-suspicion power was envisaged in the original ATA and declared ultra vires of Article 9 (ie no one is to be deprived of life or liberty save in accordance with the law) by the Supreme Court in ‘Mehram Ali vs Federation’. To tackle situations such as a suicide bomber walking towards a target the concept of “preparing to commit a scheduled offence” (a defined concept in the PPA) ought to have been used instead of the subjective “in all probability” test already declared unconstitutional by the Supreme Court.

The right to search without warrants was also part of the original ATA. The Supreme Court held in ‘Mehram Ali’ that in order to preserve the right to dignity and privacy of home under Article 14, reasons must be recorded and served on the person whose premises is to be searched. This can happen simultaneously with the search, as the idea is to ensure that search powers aren’t used arbitrarily or excessively. The PPA will probably need such amendment too.

The right to arrest without warrant is nothing new. It exists in one form or another under the ATA, the Anti-Narcotics Act, the Airport Security Force Act, the FIA Act and Maintenance of Public Order law etc.

The right to detain and intern without disclosure and oversight was very problematic and has now been brought within the framework of Article 10, which requires that a detainee be provided with reasons for detention within 15 days of being detained and affords judicial review boards oversight of the detention regime.

And lastly, reversal of the burden of proof and the need for the accused to establish innocence (as opposed to being presumed innocent until proven guilty) remain problematic. In such cases the Supreme Court has traditionally held that the burden can only be reversed once the state has made a prima facie case against the accused on the basis of evidence. Such clarification with regard to the PPA is essential to provide comfort that a foundational principle of criminal justice is not being turned on its head.

The PPA is not perfect. But in its approved form it is not as draconian as it has been made out to be. Its interpretation and application remain subject to judicial guidance. And then it has a sunset clause: it will die its own death in two years. While the PPA provides the necessary link between the North Waziristan operation and our criminal justice system, the question of whether it will lead to convictions remains wide open.

The writer is a lawyer.

sattar@post.harvard.edu

Twitter: @babar_sattar

Published in Dawn, July 21st, 2014