Wednesday, 19 March 2014
Pakistan’s’ Mother’ of all Ordinances, Niloofar Qureshi
Pakistan’s’ Mother’ of all Ordinances, Niloofar Qureshi
When the legislators realised that the Anti Terrorist Act 1997 had proved ineffective in checking the growing menace of terrorism in Pakistan, they got together and did exactly what their predecessors had done in 1997- come up with yet another anti-terrorism law! Despite well-meaning advice from various quarters regarding the obvious dangers of providing sweeping powers to law enforcement agencies (LEA), the law-makers felt otherwise and completely agreed with the views expressed by the LEA that they were ‘handicapped’ in their ‘war against terror’ due to lack of ‘adequate’ powers.
Thus was born the ‘Protection of Pakistan Ordinance (PPO) 2013 and since it has decreed that “No member of the police, armed forces or civil armed forces acting in aid of civil authority, Prosecutor General, prosecutor, Special Judicial Magistrates or the Judge of a Special Court shall be liable to any action for the acts done in good faith during the performance of their duties,” the LEA and judiciary has finally been ‘empowered’ and we can now expect miracles! To illustrate how the PPO will be able to eliminate terrorism, let us examine how this ordinance enabled the LEA to finally nail a ‘hardcore’ terrorist Bacchu Balochi.
A school teacher by profession, Bacchu’s father Abbu Balochi was a frail man in his sixties who was so preoccupied with his own problems that he had just no time to either indulge in wild fantasies such as dreaming of an independent ‘nation’, or maintaining record of the notional losses being suffered by Balochistan due to non-payment of royalty money for the minerals being extracted by Islamabad. He was also worried about the future of his son Bacchu, who having been afflicted by polio could barely walk. So, when the LEA team knocked on Abbu’s door, everyone was surprised as none could fathom how the aged schoolteacher could have had any terror links. However, things became clear when the LEA officer, after naming two of his ex-students who had picked up the gun, concluded that had Abbu Balochi not spread ‘anti national’ feelings amongst his students, these boys would never have taken the path of terrorism! Abbu’s pleas that except for these two, all his other pupils had turned out to be law-abiding citizens fell on deaf ears.
When the LEA officer announced that he had come to search Abbu’s residence for ‘subversive material’, Abbu Balochi politely asked the officer whether he had a search warrant. Instead of producing the same, the officer waved a copy of PPO at him and curtly informed Abbu Balochi that this ordinance entitled him to enter and search any premises without a search warrant. As Balochi helplessly watched on, the LEA team rummaged through his house with the fury of a cyclone, but found nothing incriminating. Just as Balochi heaved a sigh of relief, the LEA officer told him that he was ‘confiscating’ Blochi’s property and household goods. All that the surprised school teacher could do was to question the LEA man’s legal authority to do so when nothing incriminating had been found. Hitting him hard on the head with the copy of the PPO, the LEA man told him that he was doing so on ‘suspicion’ and that there was explicit authority for this in the PPO!
While this outrageous explanation left Balochi speechless, his son Bacchu stepped- in to prevent the LEA men from loading the household goods into a truck. This annoyed the LEA man, who promptly took him into custody telling Abbu that under the provisions contained in the PPO, his son had just earned for himself a 10 year prison term as he had been ‘found guilty’ of ‘resisting’ the ‘enforcement of law’. Amidst loud wails and protests, the LEA team took both the household goods and Bacchu Balochi away. Though depressed, Abbu Balochi did not lose heart and comforted his wife by telling her that since their son was innocent and crippled; the LEA would not be able to either ‘frame’ him or press home any charges and thus would have to release him. He felt reassured when his neighbour, Advocate Kanoon Balochi, endorsed this view and so, he alongwith with the advocate made their way to the LEA camp, confident that they would be able to secure the release of their son.
Though he had filed hundreds of petitions concerning abduction and murder of innocents by ‘unidentified gunmen’, Kanoon Balochi remained largely unemployed as none of these cases ever came up for hearing in court since they never went beyond the investigation stage. Now was his chance to do something productive and so, invoking the provisions of Article 10 of the Constitution, he reminded the LEA official that “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest”, and demanded that the charges under which Bacchu Balochi had been taken into custody be intimated. He also told the LEA officer that the same Article of the constitution stipulates that no arrested person “shall be denied the right to consult and be defended by a legal practitioner of his choice,” and that he would henceforth be representing the arrested boy.
Contrary to his expectations, the LEA officer was totally unimpressed by Kanoon Balochi’s authoritative rendition of the constitutional guarantees to which his client was entitled and declined to oblige. Instead, the LEA official informed Kanoon Balochi that his legal knowledge was out dated since as per the PPO, it was amply clear that the “Government may not, in the interest of the security of Pakistan, disclose the grounds for detention or divulge any information relating to a detainee.” Kanoon Balochi just could not believe his ears, as the absurd logic of this clause which attacked the Constitution of Pakistan, escaped the comprehension of his legally oriented mind. When Kanoon Balochi told the LEA man that he could be charged for illegal detention of his client who was innocent, the LEA just laughed and said that since he was acting in “good faith,” the PPO gave him ‘immunity’ for his actions!.
Yet, Kanun Balochi did not lose heart and sought to assuage Abbu’s fear of his son being subjected to ‘enforced disappearance’ by telling him that Bacchu could not be held indefinitely by the LEA. In an effort to reassure Abbu as well as remind the LEA officer that he could not atleast have his way on this account, the advocate told him that as per Article 10 (2) of the constitution of Pakistan, “Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest … and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” This constitutional reference too failed to have any impact on the LEA official, who informed Kanun Balochi that thanks to the PPO, a person could now be placed under ‘preventive detention’ by the armed forces or civil armed forces for period of upto three months.
Kanoon Balochi obtained a copy of the PPO and found to his horror that he would soon have to find another profession as this ordinance had made him redundant. All incidents related to terrorism would now be investigated by Joint investigation teams (JIT) constituted by security agencies with just a token police representation, implying that those who made arrests would themselves be investigating the cases. Since the accused would be tried in ‘special courts’ and deemed ‘guilty’ till they proved themselves to be ‘innocent’, it meant that it would be influence and not evidence that would matter. Unfortunately, Kanoon Balochi, on account of his ethnicity, was not an influential man.
Yet Kanoon Balochi went ahead and fought the case of Bacchu Balochi and expectedly lost as he could not gather credible evidence to prove the innocence of his client. His plea that Bacchu being afflicted with severe polio could obviously not be in a position to participate in ‘hit and run’ attacks on security forces in the mountainous regions failed to impress the judges. On the other hand, the prosecution (with the help of the ‘thorough investigation’ carried out by the JIT over a period of three months), was able to produce ‘irrefutable’ evidence, which included a ‘voluntary confession’ as well as ‘conclusive’ proof that Bacchu had made numerous telephone calls and exchanged many e- mails with proscribed terrorist groups, even though he never possessed a mobile phone or had any access to the internet.
While a pall of gloom descended over the Balochi family when Bacchu was convicted and sentenced to a serve a 10 year prison term, the legislators were happy and that their ‘well- conceived’ PPO would finally enable the LEA to secure a hundred percent ‘conviction rate’ ! Those investigating the case too were euphoric. Afterall, there was reason to rejoice as the PPO stipulated that, “Incentive systems shall be introduced by the Provincial Governments providing for appropriate rewards to investigating officers who conduct successful investigation.” So, while the LEA officials were honoured with awards and promotions, Bacchu languished in jail and Kanoon Balochi found to his horror that he had been declared an ‘enemy alien’ (after his identity documents were declared to be have been ‘forged’) and taken into custody- not reading the fine print of the PPO proved to be the poor advocate’s undoing!
The author lives in New Delhi and can be mailed at firstname.lastname@example.org