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.