By Najam Sethi
02 May 2014
The Protection of Pakistan Ordinance (PPO) is deeply controversial. Except for the law enforcement agencies (military, paramilitary and police forces), political parties, courts, media and civil society organizations are all opposed to it for one reason or another. But there’s no getting away from the fact that Pakistan needs a strong law to deal with the existential terrorist problem facing us all.
The military has long demanded a stiff law for use against terrorists because the existing anti-terrorist laws, which still require due process and solid evidence beyond the anti-terrorist court stage, are just not good enough to lock up terrorists and throw the key away. Hence terrorists are let off by the courts or end up “missing” and are “disappeared” of necessity. This provokes a strong reaction from everybody else and puts the LEAs in the dock, ratcheting up tensions with the courts and media while de-motivating them from frontally tackling terrorism.
The politicians don’t like such sweeping laws because of a long history of abuse of preventive detention laws by the politicians and military alike in the past in order to silence political opponents or harass them. The courts are hostile because such laws take away their writ jurisdictions to afford relief to petitioners. And civil society and human rights bodies today are even more determined to protect fundamental constitutional rights than ever before.
The objectionable provisions of the PPO relate to the unrestrained use of force by the LEAs: arrests, entry and search without warrants; preventive detention of up to 90 days that may be extended; retrospective effect on terrorists who are already in detention; withholding information about location of detention centres and detainees; burden of proof on the accused-detainee (presumed guilty unless proven innocent); protection of LEAs and special court judges acting in good faith from prosecution or accountability; confessions before LEAs admissible in court as sufficient evidence of wrong-doing. In short, a carte blanche to the LEAs to lock up anyone they don’t like for an indefinite period of time.
But it is instructive to recall the practice of other more vibrant democracies keeping faith with fundamental rights and due process of law when faced with the terrorist challenge. India enacted the unprecedentedly harsh Terrorist and Disruptive (Prevention) Act (TADA) in 1985 and retained it until 1995 to deal with the terrorist-insurgent problem in Punjab and Kashmir. After degrading and eliminating the insurgencies, it took TADA off the books. TADA is the forerunner to the proposed PPO. Significantly, however, there was a national consensus behind TADA because India does not have a history of political persecution (Indira Gandhi’s Emergency laws were derailed by the courts) and the military is squarely under the heels of the civilians. India enacted another harsh Prevention of Terrorism Ordinance (POTO) a month after a terrorist attack on its parliament in December 2001 and in 2004 it decreed a slightly watered down Unlawful Activities Prevention Act (UAPA) to deal both with terrorism in Kashmir and Maoist uprisings in its North-East.
The United States has followed the same strategy. A month after the terrorist strikes on 9/11, Congress decreed the Patriots Act and the Administration established the Department of Homeland Security. The new law gave American LEAs unprecedentedly sweeping powers to act against alleged terrorists and the courts and civil society organizations went along with them in the larger national interest. There is no history of political persecution in the US too (McCarthyism didn’t last beyond the 1950s. It was the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence). In 2009 President Obama amended the Patriots Act to reduce potential misuse of the law. But its sweeping powers remain.
Some conclusions can be drawn from this comparative picture. First, when faced with terrorism, even staunch democracies are inclined to fight rather than talk, and suspend certain fundamental rights and due process. Second, a national consensus is needed to put its weight behind such laws in the larger national interest. Unfortunately, both these conditions are missing from the Pakistani national scene. Politicians are fearful of giving the military such sweeping powers because of the constant threat of military interventions to sweep them away. And politicians cannot forget how they themselves have used such laws in the past to silence one other. Nor are the new media and courts in any mood to blithely abandon their hard won freedoms and independence at the altar of an elusive and controversial national interest. Indeed, most significantly, there is no agreement on what constitutes the national interest and how to deal with terrorism (negotiate and make opportunist concessions or fight and eliminate).
Under the circumstances, political will is needed to hammer a national consensus against terrorism. This can be done if parliament rises to the occasion and unites. Safeguards in the form of clear exemptions for political parties, media and civil society may be incorporated into the PPO. But further delays will prove very costly.