PPO legitimises ‘safe houses’ -- I.A. Rehman, secretary general HRCP

The promulgation of PPO 2014 is a means to give absolute power to security forces and legitimise ‘safe-houses’. HRCP had objected to this law when it was promulgated in October 2013. This revised Ordinance, whose text is being kept a secret from the press and public, is worse. We want to register a strong protest. This law goes against the fundamental rights of justice.

Earlier, police report was not admissible evidence in the court but now one can be convicted on the basis of police report. It has been made an admissible piece of evidence through this law. It seems there will be no trial, examination of the report, arguments. There will be nothing.

It is not going to end the missing persons’ miseries or stop the trend of kidnapping people without any evidence and keep them in an inhuman way.

Moreover, the period of detention is extended to 90 days -- a long period which is further extendable. The HRCP strongly feels the law violates constitutionally guaranteed rights and legitimises illegalities.

It misuses and ignores the fundamental principles of justice, giving the authorities the power to withhold information regarding the location of any detainee, or grounds for such detention; detention of a person in internment centre, instead of ordinary jails; creating new classifications of suspects.

The Anti Terrorism Act had similar flaws on which we are still protesting. It will also be misused, particularly in the context of enforced disappearances in the country. It would give legal cover to the agencies for the missing persons without any legal course.

There is no doubt that a state needs laws in extraordinary situations. We believe that the law is only required in extraordinary situations to streamline things. Rather than these inhuman steps, there was a need to improve and strengthen the existing legal services, mechanisms, investigation methods, and prosecution procedures. No step has been taken to improve and streamline these services for the past 10 years, sadly.

We strongly urge the government to review this law, to follow all legal procedures and give legal and fundamental protections to the to-be-aliens in this flawed ordinance. There should be an authority to look into the whole case. Its text should be publicised to ensure transparency. This legalising of safe houses has made the security forces happy. There will be no check on them.

The state should not set aside the law of evidence to meet the basics standards of justice. The apex judiciary must take notice of this "black-law".

"There is no justification for promulgating an Ordinance on such an important issue when there is a functioning parliament. Earlier, the government could detain a person for 90 days in other laws but they had to present a justification to the court and they had to go to the judicial review board later. There is no such thing in this law.

As narrated to Waqar Gillani

On the next page: Ordinance will further entrench impunity for those responsible -- Reema Omer, legal advisor for the International Commission of Jurists

Ordinance will further entrench impunity for those responsible -- Reema Omer, legal advisor for the International Commission of Jurists

The ICJ expresses deep concern that multiple provisions of the amended Protection of Pakistan Ordinance (PPO), a law that has retroactive effect, violate international human rights law guarantees of the right to liberty and the right to a fair trial. Furthermore, the implementation of provisions of this Ordinance will also facilitate numerous other human rights violations, including arbitrary detention, torture, enforced disappearances and extrajudicial killings, and further entrench impunity for those responsible. Some provisions of concern include:

1. Presumption of innocence

Section 14 of the PPO, which stipulates that all accused persons charged with committing a scheduled offence shall be presumed to be engaged in "waging war against Pakistan" unless they establish their non-involvement in the offence, is inconsistent with the fundamental right of everyone accused of a criminal offence to be presumed innocent until proven guilty by a court of law following a fair trial.

Respect for the presumption of innocence, including under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) (to which Pakistan as a party is bound to comply with) requires that the prosecution bear the burden of proving the essential elements of the crime beyond a reasonable doubt. Section 14 is inconsistent with the presumption of innocence, as it places the burden of proof of an essential element of a scheduled offence on the accused person.

2. Safeguards against arbitrary detention

Section 9 of the PPO, which allows authorities to withhold information regarding the whereabouts of detainees, the place of their detention and the grounds for the detention, contravenes a range of international human rights standards which aim to protect people deprived of their liberty from violations of their rights including arbitrary detention, torture or other ill-treatment, and enforced disappearance.

In order to protect against such abuses, international human rights standards require that family members be notified of the fact of arrest and the detainee’s place of detention, and be permitted access to the detainee. Furthermore, detainees must be given the right to prompt and regular access to their lawyers. To give effect to these rights, the whereabouts of detainees, including the location of their detention must be limited to officially recognised places of detention and place of detention must never be kept secret.

3. Right to remedy and reparations

As a party to the ICCPR, Pakistan is required to ensure effective remedies to all persons whose rights are violated, including by agents of the state. They are also required to ensure that those responsible for human rights violations are brought to justice.

Section 19 of the PPO, which provides immunity to all state agents from any proceedings for acts done in "good faith" pursuant to the Ordinance, is thus inconsistent with these obligations.

The ICJ is also concerned that the broad provisions of Article 19 of the PPO granting immunity for acts done in good faith is likely to entrench the already pervasive impunity enjoyed by those responsible for serious human rights violations in Pakistan, particularly members of law enforcement agencies and the state security agents, for violations including enforced disappearances, arbitrary detention and extrajudicial killings.

On the next page: What Pakistan needs is  proper law enforcement work -- Mustafa Qadri, Pakistan Researcher for Amnesty International

What Pakistan needs is  proper law enforcement work -- Mustafa Qadri, Pakistan Researcher for Amnesty International

There are significant law and order challenges for the Sharif government and we welcome the prioritisation of this issue. But I fear that rather than addressing the real law and order failings in the country, the government is taking the easier option of giving sweeping powers to security authorities. These laws, the Protection of Pakistan Ordinance, represent some of the most repressive security laws in Pakistan’s history.

What Pakistan needs is proper law enforcement work -- professional, thorough, independent investigations of crime scenes, arrest and prosecution of suspected perpetrators in line with international standards. The conviction rate for serious crimes in Pakistan remains very low and there is no victim or witness protection system.

These laws do nothing to address these failings. The authorities must also address the fact that so many militants remain active even after they are arrested and placed in prison. Corruption and politically compromised police and security forces have all too often turned the law enforcement arm of the state into another dangerous actor.

Pakistani authorities must ask themselves why so many of their own citizens dare not report crimes to the police for fear they will face further threats and intimidation rather than get help.

When so many Pakistanis are fearful of their own security authorities because of their heavy-handedness, giving legal cover to these authorities not only risks further abuses by them, but undermines society’s trust in the state, a dangerous predicament for a country already facing multiple insurgencies and organised criminal networks that appear able to act well beyond the reach of the law.

It is a well-established principle of international standards that lethal use of firearms is only permissible if strictly unavoidable in order to protect life. The PPO does away with this well-established principle and allows security personnel to use lethal force liberally, even to protect property.

The PPO allows the police to subject individuals to administrative detention without court overview for a period of ninety days. There can be little doubt that criminal suspects risk torture and other abuses beyond the protections of the law and scope of the courts under this power.

The PPO also reverses the burden of proof, effectively placing the onus on the accused to prove they are not guilty.

The special courts system established under the PPO does away with the power of the regular and high courts to review decisions of the lower courts. These special courts also exclude the right to bail and habeas corpus. There is also provision for secret trials where the accused has limited or no access to their family and lawyer or the full details of the case against them.

With law enforcement authorities under significant pressure to prove themselves effective, the temptation to arbitrarily detain men and boys on the merest suspicion to prove to the community they are tough on crime risks trumping the real, difficult task of providing genuine justice and security to the people of Pakistan.

Rather than making Pakistan safe, these laws risk inflaming an already volatile situation and creating an environment of widespread abuse in which individuals detained by security officials, whether on genuine suspicion of committing a crime or not, will face torture, death and other abuses.

Pakistan’s history shows that when security authorities use a heavy hand, it does not adequately address the law and order situation and security operations tend to target entire communities rather than individuals and groups who represent a legitimate, imminent threat. By turning genuine criminals into human rights victims, such policies ultimately backfire and end up turning entire communities against the state.

From recent past experience in Pakistan we know that sweeping laws are all too often used as a cover for even more excessive practices. Exactly what our research revealed in the insurgency-hit tribal areas where broad security laws are exploited by the armed forces to arbitrarily detain men and boys, often on little or no evidence of any wrong doing, with many of these people being tortured, later found dead or never to be seen again.