20

PILDAT

No.

April 2014

LEGISLATIVE BRIEF
Protection of Pakistan Act 20141

Current Status

Highlights

The Protection of Pakistan Ordinance, 2013

(PPO 2013) was promulgated by President
Mamnoon Hussain on October 31, 2013 and
laid before the National Assembly on
November 7, 2013. The PPO 2013 was further
amended through Protection of Pakistan
(Amendment) Ordinance 2014 on January 22,
2014. It was presented to the National
Assembly on January 30, 2014 and to the
Senate on February 05, 2014. The National
Assembly gave the Protection of Pakistan
Ordinance 2013 an extension of 120 days on
February 07, 2014. The report on the
Protection of Pakistan (Amendment) Bill,
2014 was presented to the House by the
Chairman National Assembly Standing
Committee on Interior, Rana Shamim Ahmed
Khan, MNA on April 02, 2014. On April 07,
2014 the National Assembly passed the
Protection of Pakistan Act, 2014 by
combining the original Ordinance and its
amendment in one bill. Currently, two petitions
lie against the PPO challenging its
constitutionality, one in the High Court of
Islamabad and the other in the Supreme Court
of Pakistan.

i.

About the Legislative Brief

The objective of this Brief is to assist citizens in
understanding the context, objective and issues
relating to the legislation so that they may
participate in the process as informed
stakeholders as well as in overseeing the
effective implementation of a law once
finalized.

Acknowledgements & Disclaimer

The provisions of the Protection of Pakistan 2013 [hereinafter referred to as the

PPO] are meant to provide protection against the 'waging of war' against and
the threats to the security of Pakistan.
ii. The PPO appears to be ostensibly promulgated in response to the directions of
the August Supreme Court.
iii. The Combatant Enemy is defined as a person who raises arms against Pakistan
and/or threatens the security of Pakistan. [Amendment 2014]
iv. Enemy Alien' is defined as a person who fails to establish his citizenship of
Pakistan and is suspected of involvement in the waging of war/insurrection/
depredation against Pakistan. [Amendment 2014a person who has been
deprived of his acquired citizenship by the Federal Government is also included
in the definition].
v. Police officers, members of the armed forces and civil armed forces may fire
upon, arrest without warrant or enter and search without warrant any premises
on forming a 'reasonable apprehension' against any person in respect of
commission of a scheduled offence. The Schedule attached with the PPO is
fairly comprehensive.
vi. The Government may authorize the preventive detention of a person for up to 90
days if the person is acting, in the opinion of the Government, in a manner
prejudicial to the security of Pakistan.
vii. A person arrested/detained by the Armed or Civil Armed forces BEFORE the
coming into force of the PPO shall be deemed arrested/detained under the PPO
[Amendment 2014].
viii. An enemy alien may be detained by the Government for an indefinite period.
ix. Special courts may be established for prosecuting persons accused of offences
under the PPO.
x. The public may be excluded from the proceedings of a Special Court on the
grounds of public safety. [Amendment 2014]
xi. A Special Court may deprive the offender of his citizenship in addition to other
punishments that may be meted out. [Amendment 2014]
xii. The Government, Joint Investigation Team, Civil & Armed Forces may
withhold information regarding the location and whereabouts of a detainee.
[Amendment 2014]
xii. The Government, Joint Investigation Team, Civil & Armed Forces may
withhold information regarding the location and whereabouts of a detainee.
[Amendment 2014]

This Legislative Brief has been commissioned

by PILDAT while two eminent lawyers, Syed
Ali Zafar, Advocate Supreme Court of
Pakistan and Ms. Ayesha Hamid, Advocate
High Court, have presented their perspectives
on the PPO 2014. PILDAT Team has compiled
the two perspectives in this brief in order to
contribute comprehensively to the debate
surrounding the PPO. PILDAT gratefully
acknowledges the perspectives of both authors
and reserves its right to subscribe to any
perspective.

Executive Summary
The preamble to the PPO gives the rationale for the new law by stating that it is
expedient to provide for protection against 'waging of war' against and threats to
the security of Pakistan and to provide for the speedy trial of offences falling
within the Schedule to the PPO. The PPO is being promulgated, ostensibly, on the
directions of the August Supreme Court in relation to cases of civil disturbance in
different parts of the country. The PPO establishes special courts for the purposes
of prosecution of the accused of the scheduled offices in 'in camera' trials. The
public is to be excluded from the proceedings before a special court upon the
application made by the prosecution on the ground that to make the proceedings
public would prejudice public safety. The Combatant Enemy is defined as a
person who raises arms against Pakistan and/or threatens the security of Pakistan.
1.

E-mail: info@pildat.org | Website: www.pildat.org

For the sake of simplicity the amendment(s) made to the PPO 2013 through the Protection of Pakistan (Amendment)
Ordinance 2014 will be read as part and parcel of the said Ordinance but where major amendments have been made
to the PPO 2013 this will be indicated against the relevant section by adding the words Amendment 2014 against
the same in brackets.

PILDAT
LEGISLATIVE BRIEF
Protection of Pakistan Act 2014
[Amendment 2014].
The Armed Forces as well as the Civil Armed Forces such as the Frontier Constabulary, Frontier Corps, Pakistan Coast Guards,
Pakistan Rangers, etc., are assigned the role of policing and prosecution of enemy aliens and combatant enemies.
The PPO empowers the police officers, members of the armed forces and members of the civil armed forces to arrest, without
warrant, any person against whom they have a reasonable suspicion of having committed or planning to commit a scheduled
offence.
The PPO also grants the Armed Forces and the Civil Armed Forces the right to fire upon any person against whom they are
authorized to use force.
The PPO authorizes the Government to detain a person for upto 90 days, if, in the opinion of the Government, such a person is acing
in a manner prejudicial to the security of Pakistan.
The PPO allows the Government, Civil and Armed Forces, in the interests of security of its personnel, etc., to withhold information
regarding the location of the detainee or the accused.
The Combatant Enemy is defined as a person who raises arms against Pakistan and/or threatens the security of Pakistan.
[Amendment 2014].
The special courts have been empowered to deprive the offender of his citizenship.
and is suspected of waging war or insurrection against
Pakistan. Combatant enemy, as inserted vide Amendment
2014, means a person who raises arms against Pakistan or
commits or threatens to commit any scheduled offence.
The scheduled offences are wide ranging and fairly
comprehensive. It would appear that the category of
enemy alien has been defined/created to bypass the
protective provisions of Article 10 of the Constitution
which affords any person's legal protection as to arrest
and detention. But Article 10(9) exempts the application
of the said Article to any person who is an enemy alien.
'Enemy Alien' is prohibited from suing in Pakistani
Courts without permission of the Federal Government by
virtue of Sec 83 of the Civil Procedure Code 1908 [enemy
alien being a person residing in a country at war with
Pakistan]. The Defence of Pakistan Rules, 1971 at Rule
2(2) define an enemy of Pakistan as a person [including a
Pakistani citizen] at war with or engaged in military
operations against Pakistan. In the light of existing
concepts of Enemy Alien why did the Government feel
the need to broaden the category?

Analysis of the PPO

Authored by Ms. Ayesha Hamid
1.

Preamble
The preamble to the PPO states that it is being
promulgated pursuant to the directions of the August
Supreme Court in cases of civil disturbance. The PPO is
stated to provide for speedy trials of offences falling
under the Schedule of the PPO and to protect against the
waging of war against Pakistan and prevent acts
threatening the security of Pakistan.
It is, however, difficult to see the rationale for the PPO in
the presence of Anti-Terrorism Act 1997, (especially in
view of the fact that vide Anti-Terrorism (Second
Amendment) Act 2013(ACT XX of 2013) the aforesaid
Act has been already been made stronger and provides
for preventive detention (30 days), forfeiture of the
property of terror suspects, interception of
communications between suspects, etc. In short the
existing legislation provides the investing and
prosecuting agencies with wide powers) which was
promulgated for purposes of prevention of terrorism,
sectarian violence and for the speedy trial of heinous
offences.

2.

Enemy Alien and Combatant Enemy:[Section 2]

The PPO defines the categories of Enemy Alien and
Combatant Enemy. Enemy alien is a person who fails to
establish his citizenship of Pakistan or has been deprived
of his acquired citizenship by the Federal Government

02

3.

Fire Upon Persons, Arrest & Search Without

Warrant(S):[Section 3]
Section 3(2)(a) allows the Armed Forces and Civil Armed
Forces to fire upon any person against whom they are
authorized to use force. The aforesaid provision amounts
to giving a license to kill to the law enforcement
agencies. One can imagine that in certain, very extreme
circumstances, the Armed Forces or the police may
require such draconian powers. The powers granted by
the PPO extend also to civil armed forces, e.g., the
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LEGISLATIVE BRIEF
Protection of Pakistan Act 2014
Pakistan Coast Guards. It is likely that such a law will lead
to abuse and moral corruption of Civil Armed Forces not
trained to implement such commando style powers.
Section 3(2)(b) allows officers of the police, armed forces
and civil armed forces to arrest without warrant a person
who has committed a scheduled offence or against whom
a reasonable suspicion or credible information exists of
having or being about to commit a scheduled offence. The
PPO fails to lay down guidelines on what may constitute
reasonable suspicion or credible information. In effect
the constitutional protection against arbitrary arrest, as
afforded by Article 10 of the Constitution, Sections 491,
496 and 497 of the Criminal Procedure Code, 1898, as
well as the directions in the nature of habeas corpus under
Article 199 of the Constitution, is being negated through
section 3(2)(b) of the PPO.

of missing persons in Pakistan. 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.
Pakistan is a signatory to and has ratified the Human
Rights Declaration and the ICCPR.2 Article 9 and Article
10 of the Constitution of Pakistan afford persons the
protection of law before they can be deprived of life or
liberty or arrest/detention in custody. In direct violation
thereof the preventive detention clause allows the law
enforcement agencies to disappear the persons on mere
suspicion of involvement in the comprehensive list of
scheduled offences.
6.

Section 8 empowers the Government to establish special

courts for the trial of scheduled offences. Section 9 allows
the Government to withhold the grounds for detaining a
person who is an enemy alien or combatant enemy and to
withhold the information regarding location of the
detainee and further, the special court is empowered to
deprive the offender of his citizenship [Amendment
2014]. Section 9A, as inserted vide Amendment 2014,
allows for the trials to be conducted in secret on the
pretext of public safety. All of the offences listed in the
schedule to the PPO already exist as offences under the
provisions of the Pakistan Penal Code 1860 and the AntiTerrorism Act 1997 [as amended vide Anti-Terrorism
(Second Amendment) Act 2013(ACT XX of 2013)].

Section 3(2)(c) allows the members of the armed forces,

civil armed forces or police to enter and search, without
warrant, any premises to make arrest or to take possession
of any property, etc., used or likely to be used in the
commission of scheduled offences. Again, this is a wide
ranging and unfettered power being extended to a host of
civil defence agencies and will undo a long protracted
battle to enforce civil liberties in Pakistan and to ensure
that law enforcement agencies do not overstep their
powers with respect to those suspected or accused of
crimes.
4.

Who is an Enemy Alien? [Section 5]

7.
According to section 5(5) of the PPO a person whose
identity cannot be ascertained shall be considered an
enemy alien and presumed to be waging war against
Pakistan. This presumption is against the canons of law
whereby a person suspected or accused of an offence is
extended the benefit of doubt and is presumed innocent
till proven guilty. The PPO turns this accepted wisdom on
its head and instead an adverse presumption is made
against the person unable to prove his identity. This is a
most unfortunate development in Pakistani law.

5.

Special Courts: [Section 8, 9 And 9A]

Burden of Proof: [Section 14]

Section 14 of the PPO provides that an accused, on
existence of reasonable evidence shall be presumed to be
engaged in waging war against Pakistan unless he
establishes his non-involvement in the offence. Every
civilized criminal system proceeds on the basis that a
person is presumed innocent until proven guilty; the
burden of proof is upon those accusing a person of a
particular offence. The PPO reverses this presumption
and places the burden of proving his innocence on the
accused.

Preventive Detention: [Section 6]

The provisions of section 6 of the PPO allow the
Government to authorize the detention of a person for
upto 90 days if, in the opinion of the Government, the
person is acting in a manner prejudicial to the security of
Pakistan. Most alarmingly section 6(5), as inserted vide
Amendment 2014, provides that a person arrested or
detained by the Armed or Civil Armed Forces and kept
under arrest before coming into force of the PPO shall be
deemed to have been arrested/detained under the PPO.

However, 'reasonable evidence' has not been defined and

in case this provision is not amended it will run counter to
the established case law in Pakistan whereby a person
accused of an offence must be convicted upon, and only
upon, the presence of proof beyond a reasonable doubt.
The concept of 'reasonable' evidence, if at all, exists in the
realm of civil litigation where a preponderance of
evidence may be taken as proof of the existence of a fact
or circumstance. World-wide, the accepted legal wisdom
is that a person cannot be convicted of an offence without
strong conclusive proof of the commission thereof.

These provisions have a direct nexus with the entire issue

2.

International Convention of 'Civil and Political Rights was ratified by Pakistan in 2010 and Article 9 thereof affords protection against arbitrary arrest and detention.

April 2014

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PILDAT
LEGISLATIVE BRIEF
Protection of Pakistan Act 2014
8.

Transfer Of Cases: [Section 16(3)] [Amendment

2014].
Section 16(3), as inserted vide Amendment 2014, of the
PPO allows the Government to seek transfer of any case
involving a scheduled offence to be transferred to a
special court. Given that the special court may be
established at any location in Pakistan, the practical effect
of this provision will be to deny the accused persons
access to their families and well-wishers and make it
difficult for them to be represented by legal counsel of
their choice.

9.

Usurping the Powers of High Courts: [Sections 17

&18]
Section 17 makes the provisions of certain sections of the
Criminal Procedure Code, 1898 inapplicable to the
provisions of the PPO; specifically the powers of the High
Courts to act as appellate courts in terms of confirming
sentences of death, to review the legality of the orders
passed by subordinate courts with respect to bail and
detention, to suspend the execution of a sentence passed
by a subordinate court and to issue directions in the nature
of writ habeas corpus have been excluded. Instead, the
PPO provides at section 18 that an appeal against the final
judgment of a special court shall lie to the Supreme Court.
A charitable view of the said provision would presume
that it is meant to provide for greater efficiency in terms of
streamlining the appellate process. However, a careful
and detailed reading of sections 374, 426, 435, 439, 439A,
491, 496, 497, 498 and 561A of the Criminal Procedure
Code 1898, establish that the provisions sought to be
excluded provide for very important powers of review
and supervision by the High Courts. The inherent
jurisdiction of the High Courts to review is recognized by
all other special laws which carve out a special
jurisdiction for special courts from the plenary
jurisdiction of civil and criminal courts. It is
unprecedented for the inherent jurisdiction of the High
Courts to be denied in this manner. It establishes an unwelcome precedent because it leaves the process of
special courts open to abuse.

a ruling that foreign nationals could not be detained without

trial and that this was a breach of the European Convention on
Human Rights, the UK law was amended [Prevention of
Terrorism Act 2005] where even the movements of foreign
nationals could only be subject to control orders. The Counter
Terrorism Act 2008 allows the police to question suspects after
they have been charged. It requires convicted terrorists to
notify the police of their whereabouts. The Government
attempted to increase the pre-charge detention of terrorist
suspects to 42 days but was defeated. The pre-charge detention
of terrorist suspects remains 28 days. One interesting aspect of
the Counter Terrorism Act 2008 is the provision whereby it
makes the eliciting, publishing or communicating information
or photographs of the police a potential offence. One can see
reflected in this a need to protect police forces.

The PPO and PPO (Amendment) Ordinance

2014 compared to the Anti-Terrorism laws in
India
The Prevention of Terrorist Activities Act [POTA] was
introduced in India in 2002. It was heavily criticized for
curtailing human rights. It was repealed in 2004 and replaced
by the Unlawful Activities (Prevention) Amendment Act,
2004 which amended the pre-existing Unlawful Activities
(Prevention) Act, 1967 [UAPA]. Many of the penal provisions
of the POTA were incorporated into the UAPA. However
some of the objectionable clauses of the POTA, from the point
of view of human rights, were dropped. As the Indian
terrorism law currently stands, the burden of proof is on the
police. There is no presumption of guilt against the suspected
terrorist. A confession made before a police officer may not be
used against the suspect. The prior sanction of the Central or
State Government is necessary before taking cognizance of
offences under the UAPA. The Criminal Procedure Code 1973
applies to arrests, bails, confessions, etc., under the UAPA.
Those arrested must be brought before a Judicial Magistrate
within 24 hours. The proceeds of terrorism may be forfeited.
Threatening witnesses is an offence and the identities of
witnesses may be kept secret even in Court proceedings.

The PPO and PPO (Amendment) Ordinance

2014 compared to the Anti-Terrorism laws in the
UK
Since 2000 there have been 5 major pieces of anti-terrorism
legislation3 in the UK. As compared to the preventive
detention of 90 days envisaged in the Pakistani legislation or
in the case of enemy aliens facing an unlimited detention: the
UK laws are based on control orders which impose conditions
on the movements of the suspected person. In 2004 following
3.

04

Terrorism Act 2000, Anti-Terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005, Terrorism Act 2006 and the Counter-Terrorism Act 2008.

April 2014

PILDAT
LEGISLATIVE BRIEF
Protection of Pakistan Act 2014
Recommendations for Parliamentarians
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. Dealing with the case of 35 persons who 'disappeared' from the Internment Centre Malakand, the
August Supreme Court observed in relation to these apparently Kafkaesque workings of the concerned authorities that it is the
Army which is responsible for these enforced disappearances and that the principles of customary international law codified in the
United Nations General Assembly Declaration on Enforced Disappearance 1992 and the Convention against Enforced
Disappearance 2006, even though not ratified by Pakistan, would be applicable to Pakistan as enforced disappearances are a crime
against humanity and violate Articles 9 and 10 of Pakistan's Constitution.
The August Supreme Court observed that the Federal Government though the Prime Minister/Cabinet must ensure that all those
officers who are responsible for their removal and have failed to account for this so far should be dealt with in accordance with law.
In addition the August Supreme Court declared that presently there is no law for un-authorizedly detaining undeclared internees
[except the provincial law Actions (in Aid of Civil Power) Regulation 2011 which is applicable in the KP].
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. 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.'
The Anti-Terrorism Act 1997 [as amended vide Anti-Terrorism (Second Amendment) Act 2013(ACT XX of 2013)] at section 13 has
already established separate Anti-Terrorist Courts for the speedy trial of terrorist offences. In the light of the presence of AntiTerrorist Courts, it is difficult to justify the establishment of yet further special courts to try the scheduled offences.
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. The presence of the public at
any trial ensures openness, transparency and prevents abuse of principles of natural justice.
The scheduled offences already carry harsh punishments of death, life imprisonment or imprisonment for upto 10 years. In the
circumstances, the unprecedented punishment of depriving offenders of their citizenship is contrary to international human rights
[Amendment 2014]. The Pakistan Citizenship Act 1951 at section 16 empowers the Federal Government to deprive a naturalized
citizen of his citizenship if he is shown to be disloyal to Pakistan's Constitution. If a person has acquired the citizenship of Pakistan
through long residence or marriage, it is conceivable that the special court may validly strip such a person of the citizenship thus
acquired. However, in the case of a person who is born a Pakistani citizen, can any court deprive an offender of his citizenship? Can a
person, born in Pakistan, be rendered stateless? This amended provision is unnecessarily harsh and in violation of fundamental
human rights.
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:
i.
ii.
iii.
iv.
v.
vi.
vii.

Make it inapplicable to the Civil Armed Forces

Curb the powers of arrest & search without warrant
Curb the powers of firing upon suspects on 'reasonable apprehension'
Make preventive detention subject to Review Boards as per provisions of Article 10 of the Constitution
Remove the bar to the jurisdiction of the High Court(s)
Allow public trials
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
viii. Remove the power of the special court to deprive an offender of his citizenship
ix. Reverse the burden of proof; the prosecution agency must prove its case against the accused rather than rely on adverse
presumptions against the accused
x.
Remove the retrospectivity of the PPO; illegal detentions and enforced disappearances cannot be ratified and given legal cover
through the PPO
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PILDAT
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Protection of Pakistan Act 2014
Analysis of the PPO
Authored by Syed Ali Zafar
The Constitution is the supreme law. Fundamental rights,
human rights and individual rights are inalienable. Under the
Constitution of Islamic Republic of Pakistan, 1973, Articles 4
and 9 of the Constitution guarantee that due process of law is to
be followed while deciding the civil and criminal liabilities of
any person and any law made or action taken, which
contravenes this basic principle, is void.
The Supreme Court of Pakistan has in various cases like AlJehad Trust Vs. Federation of Pakistan PLD 1996 SC 324
affirmed that right to have a fair and proper trial and a right
to have an impartial court or tribunal is a well recognized
inviolable right enshrined in Article 9 of the Constitution.
Similarly in the case of Government of West Pakistan Vs.
Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC
14, the Court decided that Article 4 of the Constitution
provided guarantees as comprehensive as the American due
process clause. This was also re-affirmed in Manzoor Elahi
Vs. Federation of Pakistan PLD 1975 SC 66 and has been
reiterated in various judgments.
Since the 18th Amendment to the Constitution, Parliament has
established Fair Trial as a fundamental right. Article 10A is
exhaustive and clear in its application. Article 10A provides
that:
For the determination of his civil rights and obligations or
in any criminal charge against him a person shall be entitled
to a fair trial and due process.
Although the Parliament is sovereign, its powers are limited.
Parliament cannot make laws against the Constitution or
against the fundamental rights enshrined in the Constitution.
Any law against the Constitution is void.
In ordinary circumstances, the Courts have, through the power
of judicial review and in exercise of judicial activism,
enhanced and expanded the definition and scope of
fundamental rights. In this regard judiciary is seen as the
'Champion of democracy and guardian of fundamental
rights'.
But extraordinary situations need extraordinary laws.
Abraham Lincoln at one stage, when the US was faced with
civil war, decided to suspend the writ jurisdiction of the US
Courts. He defended this decision by saying that the State
comes before the constitution.
Pakistan, no doubt, today is faced with terrorism and is in a
state of war with forces, who for their ulterior motives, desire
to overthrow the Constitution and impose or carve out their
own state. This is indeed an extraordinary situation.
In such situations, there is an extreme minority view that
06

fundamental and human rights need to be suspended

altogether temporarily to meet the dire situation and save the
State. However, the almost unanimous opinion is that at least
some measures of curtailment of fundamental and human
rights have to take place in such situations.
In the current state of affairs in Pakistan, it is a genuine fear
that if the legal system is not enforced to meet the threats of
terrorism immediately and now, the threat will become
permanent and it will be too late to do anything about it later.
Those who want to throw the Constitution will become too
powerful and unstoppable.
The consensus should be that there is a need for a law like the
Protection of Pakistan Act. The nation needs to rally together
and unite as one on this issue. There is no need for opposition
for the sake of opposition. If we do not become part of the
solution now, we will all become part of the problem soon.
There is, of course, a need for balance between the need for
enforcement of fundamental rights with the requirement to
give the investigating agencies and the Courts, through the
law, as much teeth as can be permitted.
What needs to be realized is that the gains made in battlefields
cannot be lost in the Court Rooms and as such the need to
reform the legal system is certainly there. It also needs to be
realized that it would be useless to make laws which deal with
ordinary circumstances.
It is true that historically Pakistan has been experimenting
with various laws to deal with terrorism. The principal act
already in existence is the Anti Terrorism Act of 1997. This
Act, as originally promulgated, was in fact examined by the
Supreme Court of Pakistan in Mehram Bibi's case on the
touchstone of fundamental rights and the Constitution, and the
Court declared certain provisions of this Act as void. Many
amendments were then carried out thereafter in this Act in
compliance with the orders of the Court and otherwise. This
law has, however, failed in its objective, and according to
reports, the acquittal rate of the accused is more than 75%
under this law. Practically, this law has failed in its purposes
which clearly shows that there is need for more strict laws.
Many countries in the world have had to deal with these
extraordinary situations where laws have to be made to deal
with terrorists. Although the first written constitution in the
world was the Constitution of Medina, but in the modern
world, the basic written constitution, which has been followed
in many other countries, is the US Constitution. US has a great
and established tradition of recognizing and enforcing
liberties. The US courts have laid down landmark judgments
on establishment of the due process for trials and on
fundamental rights. However when US, as a nation, faced the
threat of terrorism, which, when compared with the threat
faced by Pakistan, is minimal, temporarily set aside all its
theoretical concepts of individual freedoms and enforced the
Patriot Act and Homeland Security Act. Although these laws
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Protection of Pakistan Act 2014
were draconian and clearly violative of the fundamental
rights, the US nation stood as one, the party in the government
and the party in the opposition were united; the civil society
was silent and the Courts did not interfere. The decision was
that the country comes first and the threat being extraordinary,
extra ordinary measures needed to be taken.

the detention is based on the 'reasonable suspicion' of the

executive concerned.
The main issue is whether there is a watchdog in case the
discretion available with the Secretary Ministry of
Interior or other authorized officer to detain someone is
abused.

India is another example. It is the largest democracy in the

world and there is no doubt that the constitutional rights are
fully guaranteed there as well. However when India was faced
with terrorist activities, the Indian Parliament did not hesitate
in promulgating the Terrorist and Disruptive Activities
(Prevention) Act (TADA). TADA has been criticized by the
human rights activists and worldwide as being against all
principles of fair trial, yet all parties in India united together
behind this law as they felt that the country needed such drastic
laws. The Indian Supreme Court also did not interfere. The law
still exists and continues to do so.
There are numerous examples of other nations including
United Kingdom which when faced with their own terrorist
activities have laid down such laws.

The protection against abuse of this power is provided in

the Constitution itself. The High Court under Article 199
and the Supreme Court under Article 184(3) have ample
powers of judicial review. There are many cases of
Pakistani jurisdiction which specify that grounds to
detention must be reasonable and based on an objective
standard and the decision to detain is subject to the
scrutiny by the Courts. This provides an ample safeguard
and protection of the fundamental rights of the citizens
from abuse.
2.

Hue and cry has been raised that Section 2 of the PPO
2014 gives the power to a police officer and the armed
forces' personnel to shoot at sight. This is not a correct
reading of Section 2. The firing has been made legal if a
police officer finds someone committing a scheduled
offence and there is reasonable apprehension that death,
grievance, hurt or destruction may occur. The purpose is
to enable the police officer to shoot the terrorist in case the
terrorist is about to detonate a bomb. This power to fire is
not a judicial killing or shoot at sight as it is being
portrayed. This power is to enable the persons responsible
for guarding the lives and property of people to act on the
spot and prevent, for example, a bomb blast. If the power
is abused, again there is a legal check namely the person
abusing this power is liable for criminal action and
prosecution in a court of law.

In a latest judgement of the Federal Court of New York, which

is one of the most respected Federal Courts in US, the Court
decided that if the intelligence agencies have a reasonable
suspicion that force is required against a person involved in
terrorist activities including a US citizen, the Courts will
believe them.
With this background, the provisions of the PPO Bill 2014 are
indeed in keeping with the time and the need of the hour. The
Bill has now been approved by the National Assembly and
various amendments have been carried out allaying many of
the criticisms that were needlessly heaped upon this law. Some
of these amendments have improved but some have taken
away necessary teeth. Nonetheless over all the law continues
to remain necessary. The law needs to be passed by the
Parliament urgently and if there are any provisions which
violate fundamental rights, the Courts have ample power to
examine the same and declare such provisions invalid. This
task should be left to the Courts.

3.

Issue of Preventive Detention

Under Section 6 of the PPO Bill 2014, the Secretary
Ministry of Interior or Grade 21 or above officer may
order ninety (90) days preventive detention upon
suspicion that the person is or may be involved in terrorist
activities. An objection has been raised that this is
contrary to the fundamental rights contained in the
Constitution as a person's liberty is at the discretion of an
executive officer. This objection is not correct. In various
laws dealing with terrorism promulgated around the
world, there are provisions for preventive detention and

April 2014

Power to Armed Forces

Another objection is that the power is being given to
armed personnel under this Section 2 to fire upon those
persons committing scheduled offences of terrorism.
This power to the armed forces can be regulated better if
an amendment is made in Section 2 that This applies to
only those armed personnel who are deployed for law
enforcement in a specified area or combating terrorism
and not generally. This will allay the fears that the Army
has been given police powers in toto. In the amendment
carried out by the National Assembly, such a provision
has now been added.

Subject to this there are some objections to the Bill which need
to be addressed. These are as follows:
1.

Shoot at sight

4.

Definition of Scheduled Offences

It has been found in the past that because the definition of
scheduled offences has been made very wide, the
Courts dealing with Anti-Terrorism Act 1997 have been
overwhelmed with cases which do not stricto senso
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LEGISLATIVE BRIEF
Protection of Pakistan Act 2014

5.

involve acts of terrorism. The purpose of the PPO Bill

2014 is to deal with exactly the same situations and
accordingly it would be useful to tighten the definition of
scheduled offences. This will enable the Courts
constituted for this purpose to work more efficiently.

not just a matter of promulgating a law but rather its

implementation. The main practical problems are:
(i)
(ii)

Burden of Proof

(iii)

Another objection is regarding the burden of proof being

imposed on the accused. It is argued that this is contrary to
the normal procedure. This indeed is the case. This
provision was also provided in the Anti-Terrorism Act,
1997 and has been upheld by the Supreme Court of
Pakistan in Mehram Bibi's case.

(iv)

Poor policing
Lack of proper witness, judge and prosecution
protection programmes
Lack of credible forensic evidence investigation,
collection and application provisions
Lack of proper prosecution training

The Parliament must ensure that adequate provisioning is

made for the above. Over all the implementation of the law
becomes negligible if there are no proper findings. Therefore
ultimately the Parliament must ensure that funds are properly
allocated for this purpose.

In the end if the legal system is to be properly re-vamped, it is

Pakistan Institute of Legislative Development and Transparency - PILDAT

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E-mail: info@pildat.org | Website: www.pildat.org

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April 2014