Problems with the Ordinance

February 2, 2014

Problems with the Ordinance

The Protection of Pakistan Ordinance, 2013 (PPO) ostensibly provides for "protection against waging of war against Pakistan, prevention of acts threatening the security of Pakistan and for speedy trial of offences", aims that are already covered under a host of other laws including the Pakistan Penal Code, the Anti-terrorism Act, 1997 (ATA), the Security of Pakistan Act, 1952, Maintenance of Public Order Ordinance, 1960, Defence of Pakistan Rules, etc. What was not already covered could easily have been provided for in the ATA.

If most of the offences were already provided for in the aforementioned laws, what is it then that the PPO aims to achieve?

Broadly speaking, PPO does some extraordinary things. One, it defines, ‘combatant enemy’ and ‘enemy alien’. Two, it grants powers of arrest and to open fire upon any person suspected of about to cause death, grievous hurt or destruction of property, to the armed forces and its subsidiaries, the so-called civil armed forces (the Pakistan Rangers, the Frontier Corps etc.).

Three, it establishes special prosecuting agency and special courts with power to strip citizens (ostensibly including born Pakistanis) of their citizenship once they are proven guilty.

Four, it grants the armed forces immunity for illegal detentions more specifically called enforced disappearances with retrospective effect. 

The PPO provides that the “Government may not in the interest of the security of Pakistan disclose the grounds for detention or divulge any information relating to a detainee”. 

Five, the PPO provides for preventive detention to the extent that the government (read the armed forces) "may not in the interest of the security of Pakistan disclose the grounds for detention or divulge any information relating to a detainee, accused or internee who is an Enemy Alien or Combatant Enemy".

Six, it provides that in case of existence of "reasonable evidence", a vague term which has been left undefined, against suspects they "shall be presumed to be engaged in waging war against Pakistan" unless they prove themselves innocent.

Seven, it also provides for the exclusion of public from proceedings of special courts.

Last, but not the least, it overrides other laws which come in conflict with it.

Many of the provisions of the PPO are problematic in that they are contrary to the constitutional guarantees and international human rights norms and law binding upon Pakistan. These provisions are vague and without a clear aim. For instance, it provides that the Special Court may deprive the offender, including a born Pakistani, of his citizenship.

Two questions arise here. One, whether it is constitutionally possible to deprive born Pakistani citizens, even if proven offenders under any law, of their citizenship? Apparently, this will prove to be an insurmountable constitutional challenge, especially because in most cases such an action may render the offenders stateless. Two, whether constitutionally possible or not, what is the need for such a drastic, harsh law, especially when the proven offender is liable to be consigned to imprisonment which may extend to ten years under the Ordinance?

Isn’t there an unnecessary effort to appear to be too tough at work here?

The necessity to define "enemy alien" seems to have arisen from the fact that article 10 of the Constitution of Pakistan obliges the state to ensure certain protections to every person, and not just the citizen in cases where personal liberty is at stake, especially in preventive detention cases. Article 10(9) excludes ‘enemy aliens’ from the scope of the protections guaranteed in article 10. But "enemy alien" has not been defined in any law. Thus, introduction of the term "enemy alien" in the Ordinance.

Second, the PPO provides that the "Government may not in the interest of the security of Pakistan disclose the grounds for detention or divulge any information relating to a detainee, accused or internee who is an Enemy Alien or Combatant Enemy". Thus, enemy" is defined in broad and vague manner as one "who raises arms against Pakistan, its citizens, the Armed Forces or Civil Armed Forces or aids or abets the raising of arms or waging of war against Pakistan or threatens the security and integrity of Pakistan…"

Is it difficult to imagine that anyone expressing opinion in any form in support of right to self-determination for the Baloch people may be apprehended under this law?

Clearly, the drafters of the law are of the opinion that the threat is so great and not just the extremist, Islamist kind, that it has to be met with draconian measures.

The recent amendments to PPO (Ordinance I of 2014 issued on Jan 22) seek to also grant, with retrospective effect, immunity to the armed forces for illegal, undisclosed detentions at unspecified locations i.e., immunity for the so-called ‘missing persons’. This became necessary as demand for accountability for enforced disappearances has kept mounting and it had become increasingly embarrassing for the security establishment to be represented in the Supreme Court without a legislative justification, even if questionable.

It was this urgency regarding the cases of illegal detainees, many of whom have died unnatural deaths, that the immunity clause was added to the PPO through the Ordinance I of 2014.

These aspects more than anything else are in violation of national constitutional and international legal/human rights standards and spell serious risk for the citizens of Pakistan.

Various provisions of PPO reduce every citizen’s safeguards against arbitrary actions by already powerful state actors. It provides for indefinite preventive detention, detention in undisclosed internment camps on undisclosed grounds and in grounds locations. It grants immunity for violation of rights concerning life, liberty and body. Granting immunity for actions of state actors committed in violation of fundamental human rights guaranteed constitutionally and under the international human rights law can have serious consequences for democratic culture in this country. The PPO establishes special courts with the possibility of closed proceedings that can strip citizens, including born nationals, of their right to citizenship and leave them liable to indefinite and undisclosed detention.

Most importantly, it attaches presumption of guilt to suspect terrorists unless they prove themselves innocent; something unimaginable in modern day democratic world.

The PPO in its original form of 2013 was presented before the parliament and the Committee on the Interior approved it without much resistance from apparently dissenting members. With the grand consensus against terror suspects and "anti national elements", it is likely that the harsher amendments will also be incorporated and passed without any significant resistance.

Past experience shows that harsher laws derogating from accepted civilised norms have not been effective in deterring terrorism in Pakistan. Pakistan Protection Ordinance will also not deter terrorism but it definitely is likely to result in abuse of powers and violation of fundamental rights leading to a situation in which the state would stand indicted in the eyes of its citizens. The parliament must reject this law.

Problems with the Ordinance