Legalizing the illegal: Protection of Pakistan Ordinance

The Pres­i­dent of Pak­istan, the silent fig­ure­head not often seen on TV, has final­ly assent­ed to an absurd and one of the worst pieces of leg­is­la­tion i.e. Pro­tec­tion of Pak­istan (Amend­ed) Ordi­nance (PPO), 2014.

The law is said to be passed by the gov­ern­ment pur­suant to the direc­tions of the Supreme Court in cas­es of civ­il dis­tur­bance in dif­fer­ent parts of the coun­try. The pre­am­ble of the Ordi­nance states that it was imper­a­tive to pro­mul­gate such a law in order to give effect to the direc­tions of Supreme Court.
Although the Pres­i­dent enjoys the pow­er to pro­mul­gate an ordi­nance when the par­lia­ment is not in ses­sion but it seems the gov­ern­ment was in such a hur­ry that it did not both­er to con­vene the ses­sion of par­lia­ment which could dis­cuss the pros and cons of a law per­tain­ing to such an impor­tant issue.

The gov­ern­ment has made it to show that it has passed the law under the recur­ring pres­sure of Supreme Court in miss­ing per­sons’ case. Where­as apex court’s orders in miss­ing per­sons’ case demon­strate that the gov­ern­ment was direct­ed to intro­duce a law which could solve the issue rather than mak­ing it more com­pli­cat­ed. The court has always been treat­ing the miss­ing per­sons’ cas­es on pri­or­i­ty basis and has been crit­i­cal of the extra judi­cial role played by the armed forces in enforced dis­ap­pear­ances. Supreme Court had been repeat­ed­ly order­ing to pro­duce the miss­ing per­sons and the gov­ern­ment very rarely com­plied with these orders.

Through this Ordi­nance, Nawaz admin­is­tra­tion has legit­imized the ille­gal act of enforced dis­ap­pear­ance of any per­son who, accord­ing to the gov­ern­ment, is wag­ing war against Pak­istan. The Ordi­nance allows to “keep any per­son in pre­ven­tive deten­tion” up to nine­ty days. The PPO, 2014 will sure­ly win the race of most bizarre pieces of leg­is­la­tion which were made for the pub­lic at large – NRO is exclud­ed from the race since it was made to ben­e­fit cer­tain indi­vid­u­als.

Some of the pro­vi­sions of the enact­ment are extreme­ly irra­tional that vio­late the Con­sti­tu­tion of Pak­istan and the prin­ci­ples of nat­ur­al jus­tice.
The laws in a civ­i­lized soci­ety are pro­mul­gat­ed in order to guide its cit­i­zens rather than to veil the state spon­sored crimes.

The PPO, 2014 autho­rizes the armed and civil­ian forces to detain, inves­ti­gate and kill any ran­dom per­son and they will not be held liable for any action for the acts done in good faith. Isn’t this Ordi­nance a humil­i­a­tion to the depart­ed souls of muti­lat­ed bod­ies found in Balochis­tan, for­eign­ers killed in Kharotabad that includ­ed a preg­nant lady, many passers­by gunned down in Karachi, Sar­faraz Shah and var­i­ous oth­ers who had been killed by the secu­ri­ty forces in good faith.

More­over it allows the armed and civil­ian forces to break into any house with­out obtain­ing a search war­rant from a com­pe­tent court which will amount to a grave vio­la­tion of the sanc­ti­ty of dwelling.

Inter­est­ing­ly, after enact­ing it back in Octo­ber last year, the cir­cum­stances com­pelled the Min­istry of Law and Jus­tice Affairs to review its con­tents. And it came up with an amend­ment by intro­duc­ing a rel­a­tive­ly new term of Com­bat­ant Ene­my. It relates to the infa­mous US deten­tion cen­ter in Guan­tá­namo Bay when it was acute­ly scru­ti­nized by human rights orga­ni­za­tions world­wide, the law mak­ers came up with the term which made the detenus immune from the appli­ca­tion of U.S nation­al laws.

The PPO has prac­ti­cal­ly changed the pos­ture and tex­ture of the armed forces, includ­ing Pak­istan Army, and has made the entire armed forces equiv­a­lent to police. It pro­vides the polic­ing pow­ers to the armed forces, which is not only absurd but would be low­er­ing the esteem of the armed forces. Armed forces are sup­posed to be forces that pro­tect the bor­ders but the enact­ment of the Ordi­nance has unnec­es­sar­i­ly dragged the armed forces into inter­nal secu­ri­ty affairs.

The wide­ly antic­i­pat­ed law has gone a step ahead in cur­tail­ing the pow­ers of the sub­or­di­nate as well as High Courts. Gen­er­al­ly heirs of a miss­ing per­son used to file a Habeas Cor­pus peti­tion in the Ses­sions Court under sec­tion 491 of the Crim­i­nal Pro­ce­dure Code (CrPC). But the Pro­tec­tion of Pak­istan Ordi­nance bars the appli­ca­tion of cer­tain pro­vi­sions of CrPC includ­ing sec­tion 491 leav­ing the juris­dic­tion of the courts redun­dant. So if now someone’s loved one goes miss­ing and in case the fam­i­ly wants to know the where­abouts, they are left with no rem­e­dy but to be silent.

The ver­dict of a spe­cial court con­sti­tut­ed under PPO can­not be chal­lenged in any court except direct­ly to the Supreme Court mak­ing the adju­di­cat­ing pow­ers of a spe­cial court equal to a High Court.
Gen­er­al­ly speak­ing the crimes sched­uled by the PPO equat­ed as war crimes have already been declared as seri­ous offences under var­i­ous local laws includ­ing Pak­istan Penal Code. Had the gov­ern­ment been able to bring the secu­ri­ty forces with­in the bar­ri­cades of exist­ing laws, they would not have felt the need to enact the Pro­tec­tion of Pak­istan Ordi­nance. It shows the help­less­ness and fail­ure on the part of State that they can­not even imple­ment the exist­ing laws leave alone PPO.

In case the Pro­tec­tion of Pak­istan Ordi­nance is adopt­ed by the Nation­al Assem­bly or the Supreme Court does not declare it repug­nant to the Con­sti­tu­tion – which is very least like­ly, it would spread more chaos and many inno­cent peo­ple would be hunt­ed down for no rea­son. The law which affects the fun­da­men­tal rights guar­an­teed by the Con­sti­tu­tion has abol­ished the inher­ent pow­ers of sub­or­di­nate courts, is not expect­ed to serve the pur­pose but would rather severe the sit­u­a­tion. There­fore, either the Par­lia­ment or the Supreme Court exer­cis­ing the pow­er of judi­cial review have to inter­vene in scrap­ing the para­dox­i­cal law in order to save peo­ple from any fur­ther humil­i­a­tion. And alter­na­tive­ly enact a law which heals the wound of miss­ing and killed per­sons, not the oth­er way round.