By Mazhar Ilahi: –
The long waited law to provide special measures to deal with extra ordinary situation of terrorism and militancy has been passed by the Parliament. The print and electronic media have publicized much on the characteristics of this legislation. Similarly, a lot has been discussed in and outside the legislature about the nature of the menace, the effectiveness legislative policy, the ensuing legislative solution and its compatibility with the Human Rights issues. However, what has remained missing is an analysis of this legislative instrument to answer a question that whether the aspiration of one of the cabinet ministers, Zahid Hamid, that: “the Act of Parliament would send a message that the government stands with the military in the operation against terrorists”, would stand the test of judicial scrutiny in individual cases? In this respect, the plain reading of the legislation reveals that much has been gained under the new legislative scheme which aims to facilitate the armed forces and other law enforcement agencies to deal with the mischief against national security, yet, the situation is otherwise on some constitutional scores; and there remains a potential for the legislative objective to face havoc for having been at variance with the provisions of the Constitution of Pakistan. In this context, I take this opportunity to examine a few provisions of the PPA, 2014 in relation to different articles of the Constitution of Pakistan, 1973 and suggest some way out to avoid legal battles during war against terrorists.
According to Section 18 of the Act of 2014, the provisions of sections 374, 426, 435, 439-A, 491, 496, 497, 498 and 561A of the Criminal Procedure Code, 1898 shall not apply to the offence punishable under the Act. It appears that these exceptions have been implanted in the legislation to avoid the delay in the trials and execution of the judgements of the Special Courts. In as much as Section 374 makes it incumbent for the trial court to submit the sentence of death to the High Court for confirmation; Section 426 gives the Appellate Court the authority to suspend the sentence of trial Court and release the convict on bail pending the appeal proceedings; Section 435/439-A extends the powers to call for records of inferior courts and exercise the power of revision; Section 491 grants the power to order production and then release a person detained without any authority of law; Section 496, 497 and 498 relate to bail of accused before arrest or after arrest and section 561-A deals with inherent jurisdiction of the High Courts, and in this context, a closer scrutiny of criminal judicial system of Pakistan reveals that, amongst others, the applications filed by or on behalf of the accused/convicted persons under one or more of these provisions are a few of the major causes of delays of the criminal trials in Pakistan. Yet, an analysis of the practice of exercise of Constitutional jurisdiction vis-à-vis some matters relating to above said exclusions reveals that the exceptions carved out of the Cr.P.C. may lose their significance resulting in, inordinate delay in the trial of the cases in the Special Courts. Hence, it would have been good if apart from providing for exceptions, the legislation would have provided for constitution of special benches in the High Court and Supreme Court to deal with constitutional petitions on the subjects with special mandate to decide the cases with in stipulated time frame.
Another point of concern in the PPA, 2014 remains Section 9 (2) (b) that denies the detainees their right to know the grounds of their arrest and detention. In this context, Article 10 (1) of the Constitution of 1973 that deals with the safeguards guaranteed to the all persons as to arrest and detention, amongst other, ensures that every person who is arrested shall not be
detained in custody without being informed of the grounds of such arrest. However, according to Constitution this privilege is not available to the person who, for time being, is considered as an “enemy alien” (This term “enemy alien”has not been defined in the Constitution). Yet, under Section 9 (2) (b) of Act of 2014, the denial of this right goes beyond the “enemy alien” and extends to the “militants” as well. On policy scores, though this is absolutely correct approach and need of the hour as well, yet, as a Republican State, the rule of law entails the legislature to remain within the limits prescribed by the Basic law of the country. I understand that the Section 9 has been worded very carefully by prefixing a statement of intention of legislature to that effect (“subject to the constitution”); and further that the term “enemy alien” as incorporated in the Constitution, may be considered wide enough to include the terms “enemy alien” as well as the “militants”, as distinguished in the Act of 2014 on the parlance of foreign and local militants, respectively; however, any authoritative pronouncement on this point of “ultra vires the Constitution” may take time putting the legislative efficacy of this much need Act of Parliament, though in individual cases, in turmoil. In this respect, it would have been good if the definitions are so amended to bring it in line with the constitutional requirements of the country.
Last point of concern has been the “Removal of difficulty” clause under Section 25 of the PPA, 2014 and the same reads as under: –
“25. Removal of difficulties.— (1) If any difficulty arises in giving effect to any provision of this Act, the President may make such order, not inconsistent with the provisions of this Act, as may appear to him to be necessary for the purpose of removing such difficulty.
(2) An Order under sub-section (1) shall be laid before each House of the Parliament in its first sitting after the Order is made.”
In this context, where on one hand, subsection (1) has possibility to come in direct conflict with the authority of the judicature to interpret the legislation in accordance with the true and original intention of the legislature, one the other hand, subsection (2) does not fully disclose the complete legislative course to be taken in the House of Parliaments and its outcome. The reason for latter inadequacy appears to be that the (2) was added by amendment in the Senate and the same came down to National Assembly without passing through the process of legislative scrutiny in the hands of the expert drafter. Yet, in this context, the questions that remain unanswered are that: whether, in view of subsection (2), the Order of President shall be treated as Bill in both the Houses of Parliament?; If yes, whether this is possible in the absence of any constitutional provision to this effect?; Moreover, if the Order of the President does not pass through the Houses of Parliament then whether the pending proceedings and past and closed transactions as having been done with in purview of the Order shall stand saved as are saved in case of Ordinance under article 264 of the Constitution and in case of other central legislation under section 6 of the General Clauses Act, 1897, if yes, on what authority of law?; what are the parameters of “difficulty” and ambiguity, and whether the President can pass an Order when the crucial point of legislative difficulty/ambiguity is pending adjudication before the superior courts?; and in view of these important questions, whether any such legislative authority can be delegated to the President in view of the constitutional scheme of parliamentary democracy? etc. etc. In my opinion, in the presence of the provisions to promulgate Ordinance under the Constitutional frame work, this provision in its present form provides superfluous and precarious legislative solution.
The PPA, 2014 is indeed an outstanding piece of politically negotiated legislation wherein it was very difficult for all those involved in drafting and wetting of the instrument to strike a balance between the constitutionally guaranteed fundamental rights and the demand of the State institutions for legal authority to deal with mischief of non-conventional warfare, however, its section 9 (2) (b), 18 and 26 have potential to bring different State institutions face to face on the touchstone of much celebrated and politically debated principle of rule of Constitutional law. This law has just been passed and this is the time that the anomalies can be remedied quickly by appropriate means without having any effect on the legislative efficacy of the Act of 2014.
(The author is PhD scholar and is expert on the subject of legislative reforms. He is currently Director of Sir William Dale Legislative Drafting Clinic in Institute of Advanced Legal Studies, University of London)