TAHIR NIAZi
islamabad - The United Nations human rights (HR) bodies have expressed their grave concern over the establishment of military courts in Pakistan and other provisions of Protection of Pakistan Act (PoPA) under which the courts were set up to respond to security concerns in the country, The Nation has learnt through highly reliable sources.
The UN bodies have observed that certain provisions of the legislation are not in line with Pakistan’s international human rights obligations under the treaties it has ratified and other international human rights and humanitarian standards. They said “such court (military courts) must be a different body from the one that ordered detention and that its competence, independence and impartiality should not be undermined by procedures or rules pertaining to the selection and appointment of judges.” They believed that scope of the POPA provisions may grant overly broad powers to the law-enforcing and military forces without subjecting them to any judicial oversight.
The objection comes at a time when the nation is witnessing a fresh surge in attacks against military personnel fighting terrorism. As has been asked by the UN bodies, the revision of the legislation may cause a blow to the government’s efforts to root out terrorism from the country.
The First Vice-Chair of the Working Group on Arbitrary Detention; the Chairperson-Rapporteur of the Working Group on Enforced or Involuntary Disappearances and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism have conveyed their objections over certain provisions of the PoPA to the advisor to the prime minister on foreign affairs through a joint communication, a copy of which is exclusively available with The Nation.
The UN bodies have particularly objected to section 3 (2) (b) relating to “arrest and search without warrant,” section 22 which defines “scheduled offences,” section 6 which deals with “preventive detention,” section 9 (I), section 9 (2) (a), section 9 (2) (b) which relate to “withholding information and secret detention,” section 15 which deals with “presumption of guilt,” section 8 which relates to “special courts and secret hearings,” section 6 (5) which relates to “retrospective authorization” and section 20 which deals with “immunity and impunity.”
The PoPA was adopted by the parliament of Pakistan on July 2, 2014 to respond to security concerns in the country. The UN bodies believe that certain provisions in the PoPA empower security forces, including the army, Frontier Corps, police and Rangers, involved in the fight against terrorism in Pakistan, with the authority to arrest without warrant, to order preventive detention without adequate safeguards, and in some cases, to even detain individuals secretly, and to retroactively apply the law to legitimize illegal detentions. In their view, the absence of judicial oversight may open the door to discretionary and arbitrary interpretation or application of the law.
The communication containing a set of objections said, “The POPA also grants immunity to the law-enforcement officers who might be responsible for serious human rights violations such as arbitrary detention and enforced disappearance. These provisions are incompatible with a number of international HRs norms and standards, including the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified on June 23, 2010 and the UN declaration on the protection of all persons from enforced disappearance.”
It said section 3 (2) (b) of the PoPA grants to “any police officer not below (the rank of) BS-15 or member of the armed forces or civil armed forces” the powers to “arrest”, without warrant, any person who has committed a scheduled offence or against whom a reasonable suspicion or credible information exists that he has committed, or is about to commit any such act or offence.”  It further said section 3 (2( (c) empowers the forces to “enter and search without warrant any premises to make any arrest or to take possession of any fire-arm explosive, weapon, vehicle, instrument or article used, or likely to be used and capable of being used, in the commission of any scheduled offence.” It referred to article 9 (I) of the ICCPR which guarantees that “everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention.”
The letter further said that the “scheduled offences” set out in the POPA are defined in overly broad language, and could thus be used to prosecute a wide range of conducts, which may go beyond the limits of what should be considered a terrorist activity. “For instance, scheduled offences include very vague offences such as ‘cyber crimes and internet offences and other offences related to information technology which facilitates any offence under this Act’ or ‘wrecking, disrupting or attacking mass transport systems including trains, buses, cars and their stations and ports,’ without clearly defining what acts are prohibited under these offences,” the joint communication further read.
It said section 22 of the PoPA allows the government to amend the list of “scheduled offences” by adding, modifying or omitting any entry. “We are concerned that such vaguely defined offences may be in contravention of article 9 of the ICCPR which establishes the right of any person not to be arbitrarily deprived of his liberty except on grounds established by law,” the UN bodies conveyed to the advisor. The communication said the human rights committee while interpreting article 9 of the ICCPR established that “any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.”
The UN bodies have also objected to section 6 of the PoPA which empowers the government of Pakistan and law-enforcing agencies to preventively detain individuals suspected of being involved in “scheduled offences” for 90 days. They said, “We are concerned that persons arrested and detained under ‘preventive detention’ are denied their rights to be informed of the grounds for arrest, to a lawyer of free choice, to be brought promptly before a court, and not to be detained beyond the initial legal period without the authority of a magistrate, as provided by article 10 of the constitution of Pakistan.” It demanded that the “preventive detention” regime should be carefully reviewed in order to ensure their compatibility with international standards.
The UN bodies have strongly recommended to the Pakistani government to promptly initiate a process of revision of the PoPA, with the aim of bringing it in line with Pakistan’s international human rights obligations and report back within 60 days. According to the sources in the ministry of foreign affairs, it has sent the joint communication to the law and justice division for its opinion on the subject.