South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in “The Express Tribune” on July, 20th ::

Pakistani President Mamnoon Hussain on July 11 gave Pakistani citizens a new reason to fear the country’s security forces. He signed into law the Protection of Pakistan Act, whose provisions open the door for the violation of fundamental rights to freedom of speech, privacy, peaceful assembly and a fair trial.

Although the law has just a two-year mandate, it could quickly be used to suppress peaceful political opposition and criticism of government policy. The non-governmental Human Rights Commission of Pakistan rightly described the law as a ‘blatant attack on the fundamental rights of the people’. The law violates fundamental rights enshrined in the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified in 2010.

No one questions the Pakistani government’s need to tackle the very real dangers posed by terrorism. Pakistan’s ever-lengthening list of people killed in unlawful attacks by militant groups demands a response. Victims include the 18-plus people killed on June 8 when militants attacked Jinnah International Airport in Karachi. The very next day, heavily-armed gunmen from a militant group attacked a group of Shia pilgrims in the town of Taftan in Balochistan province. The attackers — including suicide bombers — raked the pilgrims with machine gun fire and tossed hand grenades. At least 30 people died, including at least nine women and a child.

However, rather than bolstering the security of Pakistani citizens, the Protection of Pakistan Act raises the likelihood of greater abuses without greater protection. Pakistan’s response to these acts needs to be in accordance with the rule of law.

Members of the Pakistan Awami Tehreek (PAT) party got a foretaste of the dangers of the new law on June 17 when the Lahore police fired on stone-throwing PAT supporters without warning, killing at least eight unarmed people. Punjab Chief Minister Shahbaz Sharif has ordered a judicial inquiry into the incident.

But Pakistani citizens wrongfully killed or injured by security forces operating on the basis of the Protection of Pakistan Act will have no such legal recourse. The new law grants Pakistan’s security forces and judicial officials acting under the law effective immunity ‘for the acts done in good faith during the performance of their duties’. This blanket immunity violates Article 2(3) of the international covenant, which requires governments to ensure that anyone whose rights or freedoms are violated ‘shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’.

Peaceful political protesters and critics of government policies are particularly vulnerable to abuses under the new law because of dangerous ambiguity in its definition of terrorist acts. Besides ‘killing, kidnapping, extortion’, the law classifies vague acts, including ‘Internet offenses and other offenses related to information technology’ as prosecutable crimes without providing specific definitions for these offenses. The terms are so ambiguous that a non-violent online political protest might be considered ‘threatening the security of Pakistan’. The United Nations special rapporteur on human rights and counterterrorism has criticised legal definitions of terrorism that include property crimes, saying they should be limited to acts ‘committed against members of the general population, or segments of it, with the intention of causing death or serious bodily injury, or the taking of hostages’.

The Protection of Pakistan Act contains other perils to the rights and security of Pakistanis. The law expands the powers of arrest without warrant for the police, members of the armed forces and ‘civil armed forces’. All of those forces, under the new law, have the discretion to ‘enter and search without warrant any premises to make any arrest or to take possession of any firearm, explosive, weapon, vehicle, instrument, or article used or likely to be used in the commission of any scheduled offense’. The law permits them to do so without sufficient judicial control in violation of guarantees against arbitrary arrest and the privacy and the security of the home under the ICCPR.

Most ominously, the law denies Pakistanis one of the most fundamental human rights protections — the presumption of innocence. Under Article 14 of the International Covenant, everyone should have ‘the right to be presumed innocent until proved guilty according to law’. Instead, the law removes the burden of proof of criminal conduct from government prosecutors and requires criminal suspects to prove their innocence. The law states that those arrested for suspected terrorism offenses ‘shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offense’.

It was these dangerous flaws that prompted Pakistan’s Senate in April to attempt to derail the law until the government excised elements of it that are intrinsically hostile to universal rights and freedoms. Although that effort failed, the law still must pass judicial scrutiny. On July 16, the Islamabad High Court accepted a challenge of the law’s constitutionality based on Article 8 of Pakistan’s Constitution, which states that ‘Laws inconsistent with or in derogation of fundamental rights to be void’.

Denying Pakistanis their universal rights and freedoms isn’t a smart or effective tool for battling terrorism. The Islamabad High Court challenge gives the government an opportunity to reassess the Protection of Pakistan Act and craft a new/revised law that addresses serious crimes while protecting fundamental rights. Failure to do so will make Pakistanis less safe and spell a dangerous defeat for the rule of law.

By Phelim Kine (The writer is the deputy Asia director at Human Rights Watch)

Published in The Express Tribune, July 20th, 2014.