April 10; Speakers at the Public Forum on Protection of Pakistan Bill, 2014 remained divided on whether the PPO 2014 should be promulgated in its current form or it should be amended to uphold respect for human rights.

In an intense discussion, speakers, while they agreed that Pakistan faces exceptional circumstances of security, disagreed whether the PPO 2014 offers excessive and unconstitutional or the right amount of powers to the security agencies to fight the war against insurgency.

Ms. Ayesha Hamid, Advocate High Court, Mr. Ali Zafar, Advocate Supreme Court and Senator Farhatullah Babar (PPPP; KP) spoke at the Forum while they were joined by Mr. Ahmed Bilal Mehboob, President PILDAT, Senator HasilBizenjo (NP; Balochistan) and Mr. WazirJogezai, former Deputy Speaker National Assembly of Pakistan. A large number of MPs, experts, and media persons joined the PILDAT Forum.

Presenting an overview of the PPO 2014, Ms. Ayesha Hamid said the PPO and specifically the PPO (Amendment) Ordinance 2014 are a direct response, in letter though not in spirit, to the observations and order(s) dated 10.12.2013 of the August Supreme Court of Pakistan in the Human Rights Case No.23388-K of 2013 viz the Mohabbat Shah case. Ms. Hamid believed that it would have been wiser to amend the Anti-Terrorism Act 1997 [as amended vide Anti-Terrorism (Second Amendment) Act 2013(ACT XX of 2013)], if required, or preferably to strengthen agencies, charged with prosecution of those accused of the scheduled offences rather than creating a new controversial law which attempts to remedy the failure(s) of the prosecuting and policing agencies by granting the same wide and unfettered discretionary powers in terms of arresting and searching suspects without warrants, conducting trials in secret and meting out harsher punishments. She said that it would appear that the PPO (Amendment) Ordinance 2014 has been promulgated to retrospectively give legal cover to the heretofore illegal detention of the 'missing persons.' She said that it is recognized that in Pakistan there is an abiding threat to judicial officers and prosecutors involved in the prosecution of terrorists, most recently seen in the terrorist attack on the Islamabad District and Civil Courts on March 3, 2014. However, the solution lies in beefing up the protection afforded to judges and prosecutors and strengthening the institutions of the judiciary as well as the prosecuting agencies and not in making the proceedings of the trials for the scheduled offences secret. She said that given that there are 2 separate petitions, one pending before the August Supreme Court and the other before the Honourable Islamabad High Court, challenging the vires of the PPO and in the light of the order dated 10.12.2014 passed by the August Supreme Court and given that the PPO has serious ramifications for citizens' human rights, Parliament must ensure that the law meets the serious and urgent requirements of containing terrorism as well as meet the needs of protecting human rights. Following are some recommendations for consideration by legislators who may wish to amend the PPO and the PPO (Amendment) Ordinance 2014 so as to:

1. Make it inapplicable to the Civil Armed Forces
2. Curb the powers of arrest & search without warrant
3. Curb the powers of firing upon suspects on 'reasonable apprehension'
4. Make preventive detention subject to Review Boards as per provisions of Article 10 of the Constitution
5. Remove the bar to the jurisdiction of the High Court(s)
6. Allow public trials
7. Make it compulsory for the accused to be informed of the charges against them and make it incumbent upon the authorities to release the information regarding location of detainees
8. Remove the power of the special court to deprive an offender of his citizenship
9. Reverse the burden of proof; the prosecution agency must prove its case against the accused rather than rely on adverse presumptions against the accused
10. Remove the retrospectivity of the PPO; illegal detentions and enforced disappearances cannot be ratified and given legal cover through the PPO

Mr. Ali Zafar said that the PPO 2014 is one of the most crucial laws and apt in response to security challenges facing Pakistan. He said that exceptional circumstances call for exceptional measures. We are facing a war and we require adequate legal regime to ensure that battles that we fight and in battlefield, we should not lose those in the Courtrooms. Quoting Lincoln, he said that the State comes before the Constitution and human rights. Referring to the US Patriotic Act, he said that while it is known as draconian laws in every respect, the US Supreme Court upheld the Patriotic Act. Quoting a recent verdict of the New York Federal Court, he said that the Court ruled that reasonable suspicion gives US intelligence agencies the right to shoot on said and that protection of the State precedes the individual human right. Similarly, he said the anti terrorism law in India, known as TATA was upheld by the Supreme Court of India. Emphasising his point he said that the PPO 2014 offers the right balance and opposition for the sake of opposition would not serve the interests of the State. He warned that if we do not become part of the solution, we will become part of the problem. He believed that the opposition should work together with the treasury benches to amend the law by adding protection of witnesses, judges and prosecution.The law should also incorporateforensic science as evidence. He said that the detention provision exists in all anti terrorism laws around the World and at the end of the day,Constitutional right to recourse is available to citizens.

Senator Farhatullah Babar said that while nobody disagrees with the objective of the law, there are fundamental problems with the current provisions. He believed that the definitions in the law should include such non-State actors that use the soil of Pakistan to engage in subversive and terrorist activities outside the borders of Pakistan. The law, he believed, gives the license to kill to civil and military LEAs therebyallowing extra-Judicial killings.Military agencies have been given police powers but these do not answer to civil accountability. The law no longer requires civil and military agencies to obtain a warrant to enter into a house. Detention period of 90 days can not be questioned by any Court or Parliament under the law. This, he warned, would amount to legalizing enforced disappearances. He said that the law in its current shape will breed resentment. He also questioned dispossessing a convict of nationality and rendering a person Stateless. The law must contain provisions of recourse against misuse.

Earlier, opening the Forum, Mr. Ahmed Bilal Mehboob, President PILDAT, said that the Protection of Pakistan Bill 2014 raises the classic question of maintaining a balance between tough Anti Terrorism Legal Regime and respect for Human Rights. Pakistan is facing a war and it needs to be ensured that Parliament strikes a well-considered and right balance to the State to effectively fight the war.

PILDAT commissioned a Legislative Brief on Protection of Pakistan Bill 2014 [download pdf] that was shared at the Forum.