Taking Away My Rights! (Protection of Pakistan Act 2014) by Muhammad Wajid Munir

The recently promulgated Protection of Pakistan Act (PPA) has come under scathe criticism. Many legal analysts believe that it violates fundamental rights and some salutary principles of criminal jurisprudence. However, others argue that we are facing extraordinary situations which require extra-ordinary solutions because certain procedural and substantive laws in the country provide too much relaxation to criminals.

The critics of the PPA are of the view that law enforcement agencies have been given ubiquitous powers and ‘license to kill’ (shoot at sight) after giving a ‘sufficient warning’ (Section 3). One shudders to think who will standardize ‘sufficient warning’? There are chances that it can be used in a negative way. The prevailing practice is that law enforcement agencies have been given power to use force but in limited context, such as:

Ø  Cr.P.C:128:  Officer in charge of police station may proceed to disperse assembly by force and may require assistance of any male person, not being an officer of armed forces. Provided that firing shall not be resorted to except under specific directions of an officer of the police not below the rank of an Assistant Superintendent or Deputy Superintendent of Police.

Ø  Cr.P.C:130 (2): Police Officer shall use minimum force, and do as little injury to person and property.

Ø  Cr.P.C:46: According to this section Police Officer shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word of action.

Ø  Cr.P.C:50: Person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Consequently, section 3 of the PPA is double edged sword which might be used in a negative way and it also paves the way for notorious encounters. It was held in Muhammad Ifzal v. Home Secretary, Government of Punjab (1996 PLD Lah. 325) “that dignity of man is granted by the constitution and no citizen can be subjected to torture by law enforcement agencies. Primary duty of the police is to detect crime and to bring the criminals before the court of law and not to punish them themselves.”

In Muhammad Yaqub v. State (1992 SCMR 1983) it was held that “public functionaries are to act in aid of enforcement of Article 9 of the constitution rather than to violate them. An encounter simpliciter will not entitle a police party to killing discriminately persons who are allegedly in the encounter”.

Similarly, according to section 3(2) (b) of the PPA law enforcement agencies may arrest without warrant even on the basis of suspicion! This is not only against the constitution but also against the respected UDHR to which Pakistan is a signatory. 

Ø  Article 4: Right of individual to be dealt with in accordance with law etc. Art. 4 (a) no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

Ø  Article 10: Safeguard as to arrest and detention.

Ø  Fair Trial Act, 2013: Section 8: Application for issue of warrant: Application for issuance of warrant shall be made by authorized officer to judge.

Ø  Fair Trial Act, 2013: Section 15: If judge is of the view that officer has mala fide intention; he may recommend departmental action against him.

Ø  UDHR: Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

Ø  UDHR: Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

It is worth noticing that Section 34 (1) (a) (c) of the PPA and Cl. 36 Rowlett Act, 1918 also deal with search and arrest without warrant. Rowlett Act was notorious due to clauses like this that’s why it spurred wide-spread protest in the sub-continent.

On top of all, the real howler is section 14 of the PPA. Under this section the accused will not be entitled to the benefit of doubt, which is a blatant violation of the cardinal and universally accepted notion of ‘burden of Proof’. It is a recognized principle of criminal law that onus to prove is on the prosecution. Better than ten guilty persons escape than that one innocent suffer (William Black Stone). Article 117 and 118 of “Qanun-e-Shahadat Order” clearly states that burden of proof is on the prosecution. Likewise, Article 11 (1) of UDHR states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

Another thorny point is under PPA, reports of investigation will also be admissible in evidence against the accused (section 7). The current practice in Pakistan is that the reports of investigation like police reports (Section 157, 168, 173 of Cr.P.C and Section 25 of Fair Trial Act, 2013), Experts opinion (Section 510 of Cr.P.C and Article 59 to 65) are not “admissible” in evidence. These reports are relevant but not admissible. As in Saeed Ahmad v. State (PLD 2003 SC 389) it was held that expert opinion normally, is not safe to treat.

Shockingly, some conducts (long march, strikes or to sit in etc) against government have been termed as offences against the state—“waging war against the state”. Indeed, it is a flagrant violation of Article 16 and 19 of constitution because they are not against the state but a government and its wrong policies.

Ø  Art. 16: Freedom of Assembly; Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.

Ø  Art. 19: Freedom of Speech; Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

Lastly, Preventive detention for ninety days and minimum quantum of punishment for ten years also comes under scathing criticism. There is a huge debate regarding preventive detention and majority of criminal law experts believe that it is against human rights. Same is the case with minimum quantum of punishments, which will be now wobbling “ten years”. What about theory of reformation and rehabilitation!

It is worth mentioning that India also legislated some laws against terrorism but it was an abortive attempt owing to provisions like burden of proof and arrest without warrant. Such legislation included;

Ø  Terrorist and Disruptive areas Act (TADA), 1987

Ø  The Prevention of Terrorism Act (POTA), 2002

Ø  Terrorist and Disruptive Areas Rules, 1987

Ø  Maintenance of Internal Security Act (MISA), 1971 

All above mentioned laws were misused and later done away with. TADA lapsed but was re-enacted on 24 May 1987. It was amended in 1993 and again thereafter but was allowed to lapse on 23 May 1995. The Prevention of Terrorism Act (POTA) was enacted in 2002, only by a joint session of Parliament on 26 March 2002, but was repealed in 2004 and replaced by the Unlawful Activities (Prevention) Amendment Act, 2004.

In a nutshell, PPA smells more of Rowlett Act, 1918 which the British came up with to quell terrorism. There is no denying the fact that we are facing extraordinary situation, which require extra-ordinary solutions but it does not mean to take away fundamental rights of our citizens.

Because the PPA violates fundamental human rights, it can be declared ultra vires the constitution. In Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan (PLD 2010 S.C. 61) it was decided that “the Supreme Court is empowered to examine the legislative competence to declare a statute or a legal document ultra vires the Constitution, or the action of the State authorities void if it is in conflict with the provision of Constitution, in exercise of its power of judicial review”. Similarly in Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 870) it was held that “Judiciary had a duty to examine the constitutionality of any law if it was concluded that it had been promulgated in derogation of the Fundamental Rights as envisaged under Art. 8 of the Constitution, or where any provision of any law was found contrary to the Constitution”.

Instead of strict laws government should focus on education so as to weed out terrorism from its very roots. Meanwhile, reforms in police department are the need of the hour and a prerequisite for any meaningful legislative action against the menace of terrorism. The police department needs to be depoliticized and it should be given more autonomy in order to resist against corrupt politicians and powerful sections of the society.

How is the Co-existence of Sharia and Modern State Possible?

In its recent judgment Vishwa Lochan Madan vs Union Of India, the Indian Supreme Court rejected a petition requiring the abolition of informal Sharia tribunals in India, on the pretext that ‘adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with.’ The petitioner contended that such tribunals were functioning all over India as a parallel judicial system, administering justice amongst Muslims in accordance with the Canonical law of Islam, based on the teachings of the Qur’an and traditions of the Prophet. Specific references were made to various fatwas issued by some such tribunals, which violated women’s rights. Such fatwas included the cases of Muslim women who were raped by their fathers-in-law. The tribunals which dealt with their cases required them to wed the rapist after getting divorced from their husbands. This view was supposedly supported by the classical jurists of the Hanafi school.

While refusing to accept the petitions, the Supreme Court postulated a positivist account of law by asserting that ‘the power to adjudicate must flow from a validly made law.’ The Court noted that the Sharia tribunals do not exercise any function of adjudication and their opinion does not have any authority of enforceable law. Neither do these opinions have any legal or constitutional status whatsoever. Indeed, these fatwas are ‘expert’ opinions. They are not decrees, hence they are not binding on the courts, the State or the individual. Thus the issuing of fatwas is not illegal per se. This mode of administering justice was characterised as an ‘informal justice system’ which tries to bring an amicable settlement of disputes between the parties. The opinion of any Sharia tribunal is not binding and it solely depends upon the discretion of the individuals involved to either accept it or reject it.

However, as a balancing act, the court deemed it appropriate to put some control on vexatious issuance of fatwas, which violate the human rights of individuals,  specifically protected under the Indian Constitution:

‘Having regard to the fact that a Fatwa has the potential of causing immense devastation, we feel impelled to add a word of caution. We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter… Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.’

This is a remarkable judgment, which strikes a right balance between adherence to the principles of Sharia, on the one hand, and human rights within the legal framework of the modern state and international law, on the other. While the judges refused to grant the petition declaring all Sharia tribunals illegal, they nevertheless felt it appropriate to add a word of caution for such tribunals to adhere to: ‘However, we observe that no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it.’ This effectively means a restricted regime for fatwas as a ‘valid’ fatwa after this judgment could only be issued if all the parties involved are agreed to get it. However, as most of the fatwas are issued with anonymous names of parties, this restriction will have only a limited effect.

In this judgment, the Indian Supreme Court has adopted a middle-of-the-road approach, going against a free regime for fatwas in Pakistan and a fatwa restricted regime of Bangladesh.

Full text of the judgment is available at http://www.indiankanoon.org/doc/22464727/