Guest column By Barrister Ameer Abbas Khan

The electorates of any country entrust their politicians to draft legislation and formulate policies that may shape the destination of not only the people living in the present age but also of the generations to come.

However, looking at the load-shedding saga and the legislation of Pakistan Protection Act 2014, it appears that our politicians have disappointed us miserably on both fronts.

As a layman, it’s hard to digest that the issue of load-shedding could have just started over night. On the contrary, it’s almost obvious that the energy sector has been neglected so much for so long that the genie of load-shedding is absolutely out of control now.

Be it the shortsightedness of our politicians or whatever the other causes of load-shedding are, there can be no doubt that our politicians can escape the responsibility of miseries the People of Pakistan are enduring as a result of load-shedding.

PML(N) has already completed a year in government and they must have known from day one that any factor by which their performance would be measured, it would be none other than the issue of load-shedding, though the law and order situation is in strict competition with it. And yet the load-shedding is even worse, if not the same as before.

Although the government may justify its failure to resolve load-shedding issue on the basis of the dire state of energy sector that they inherited from previous government, there appears to be no justification for the government to impose a burden of proof on the accused facing charge of any of the scheduled offences specified in Protection of Pakistan Act 2014 (PPA), which came into force all over Pakistan on 2 July 2014.

The Act stipulates that as long as reasonable evidence exists against the accused, he would be presumed to commit the alleged offence unless he establishes his non-involvement in that offence. The term “reasonable evidence” is open to many interpretations but it appears that the legislators have intended that even the minimum standard of evidence would meet the criteria of reasonable evidence in order to presume the accused guilty of the alleged offence.

This position is in total contradiction to the well-established principle of “presumption of innocence until proven guilty”. And it’s alarming to think that, in drafting PPA, how our legislators could justify not heeding to the cardinal principle of criminal law that places burden on the state to prove beyond reasonable doubt that the accused committed the alleged offence.

The rational behind such principle is that the conviction of an innocent person is more heinous than the acquittal of a guilty one. Also, state has all the resources available to it to prove those accusations against an individual. Furthermore, the nature of penalty in criminal cases is often harsher in nature, for example the punishment prescribed in PPA is of imprisonment up to 20 years with fine and confiscation of property and deprivation of citizenship if acquired by naturalization.

In addition to this well-recognized principle of criminal law, Article 10A of the Constitution of Pakistan also ensures that the accused is entitled to a fair trial and due process.

Keeping in mind the fact that it’s the state that brings a case against the individual on the basis of its own evidence, would it be fair and due to presume the individual guilty even before the trial, leaving it upon him to prove his innocence, rather than examining state’s evidence on the standard of “beyond reasonable doubt”?

The principles don’t come ready-made and are defined after painstaking experiences only to promote “Rule of Law” and dispel the notion of “Might makes Right” but the ease with which this well-established principle is discarded in PPA speaks a lot about the abilities and knowledge of our legislators; and in fact it is a disgrace to the people of Pakistan.

Though PPA would only be applicable to those scheduled offences, which are committed with the purpose of waging war or insurrection against Pakistan or threatening the security of Pakistan, it’s arguable that all acts of violence mentioned therein inherently threatens the security of Pakistan and therefore PPA has a potential of becoming a tool for the State to manipulate or blackmail any individual. Particularly, one of the scheduled offences includes “cyber crimes, internet offences and other offences related to information technology which facilitate any offence under this Act.

These are so general wordings of “cyber crime” that anything relating to computers could be covered in it; and considering the computer hacking so easy these days, some innocent people can possibly be trapped through this legislation and then fighting against the State on their own in the court room to prove their innocence, as opposed to State proving their guilt, would be nothing more than a helpless bird confined to the cage for lifetime. It is against such tyranny that principles are established and their application is ensured so that authorities cannot overlook the rule of law.

Not only the individuals but also the rulers themselves can become victim of this legislation in case of some extra-constitutional steps when almost all of the time they end up behind the bars and at some pretext of this legislation they may have to prove themselves that they are innocent. Could this be the reason for them to impose this law only for two years?

That may or may not be reason but it would be hard to dispute that the whole purpose of the government shifting burden of proof on the accused is to overcome its own incompetence to gather “admissible evidence” and instead of introducing state of the art technology and recruit and train efficient security personnel, it has gone for the easier and ineffective option of reversing the burden of proof to the accused.

And in doing so, Government is probably compromising the security of the country as the efficiency and surveillance required for securing a conviction at court would no doubt be diminished which in turn would have an adverse effect on the security arrangements. We have witnessed Karachi and Peshawar airports incidents and so far not only that no information has been furnished at all in relation to the causes of security lapses but also no arrests have been made.

At the end of the day, the Government may increase the statistics of convictions through this section of the Act but until and unless the Government enhances its intelligence, uses modern technology and trains its security personnel, from bottom to top, in view of the latest terrorist threats and their abilities even this piece of legislation would not secure safety for the People of Pakistan.

Considering our legal system and the tendency of people to bring frivolous cases, without attracting any penal consequences, it becomes even more important to abhor at least this section of the Act.

There are some other sections of the Act that require a separate debate and one of them is the power to use force, including firing, by a police officer not below the rank of BS-15.

On the face of it, there is nothing wrong in giving such powers to police, as in order to defend its quite understandable that use of power is indeed required but in my opinion it’s the manner and the lack of professionalism, the like of which we witnessed in Lahore Model Town Incident, on the part of police which is the matter of concern.

Meanwhile, PPA has been challenged before the Supreme Court of Pakistan.

An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.

The opinions expressed in this guest post are the writer’s own and do not reflect the view of the walizahid.com blog.


Also by Ameer Abbas Khan:

Arsalan case against Imran on moral ground may not stand

To sue, or not to sue? Iftikhar Chaudhry answers this question

Will PTI’s threats of August march, PA dissolution help democracy?

Musharraf: Let justice be done, though the heavens may fall!

Is Qadri’s path constitutional & legal? No

A tale of two bigwigs in two judicial systems

Arrest of Altaf Hussain: A big deal? No.


Elsewhere on this blog:

Speedy justice needs to be top priority for new CJ

  • Rehmat Ullah Kundi

    Being stationed in UK the author probably miscalculated the gravity of situation in Pakistan. It is quite understandable that in West this kind of legislation is unthinkable. Still GW Bush introduced Homeland Security Act after 9/11 and curtailed considerably the freedom of US citizens. Ethnic profiling is fallout of this short sighted policy. The situation in Pakistan is quite different. Fugitives and criminals from all over the world have found safe havens in Pakistan and they indulge in all kind of criminal activities for their survival. Instability in Karachi can be easily traced to elements. Without a strong resolve these elements can not be easily controlled. This menace can not go on for ever and must be dealt with iron hand.

    • Ameer

      Thank you for your comment!

      I have mainly raised one aspect of the Protection of Pakistan Act and that is shifting of burden of proving the alleged offence from state to the accused, as mentioned in paragraph 6 of the column, and demonstrated that such a reversal is contrary to the well-established principle of presuming a person to be innocent until proven guilty and Article 10A of the Constitution of Pakistan.

      You have stated that fugitives and criminals from all over the world have found safe heavens in Pakistan. The question is if they were able to find Pakistan as safe heaven because of the existence of the principle, which imposed burden on the state to prove that the accused committed the offence alleged, or due to some security lapses.

      Keeping in mind the current law and order situation, the power to use force, including fire, by a police officer not below the rank of BS-15 is acknowledged in paragraph 21 of the column.

      You have mentioned American’s Home Land Security Act and my understanding is that it was aimed at strengthening their intelligences, as I have suggested in paragraph 18, and no way it reversed the burden of proof from state to the accused.

      I hope it clarifies the mater!

  • Saeed Wattoo

    Draconian is a word that understates the horribly writhen nature of law. It is an insult to justice and a shameful cover-up of the chronic flaws of investigation, prosecution and judiciary.

    This law is also an exercise in point scoring and shall not serve any meaningful purpose. Instead, it is loaded with mischief that is likely to haunt its framers. This space is too small to count the holes in it!

    Having read the law and shocked to know the sweeping forfeiture of norms of justice and basic protections available to citizens, I have no doubt in my mind that Supreme Court would not acquisce to it in its present form and we shall have a substantially diluted version of it in the end.