Fundamental rights: Protection of Pakistan Ordinance challenged

Apparently, PPO was issued in 2013 and amended on Jan 22 to provide legal cover to enforced disappearances.

LAHORE:

The Lahore High Court on Friday issued a notice to the federal government and a sought its reply on a petition challenging the Protection of Pakistan (Amendment) Ordinance.

Justice Ijazul Ahsan issued the order on Muhammad Sohail’s petition who requested the court to strike down the ordinance.

The PPO was issued in 2013 and amended on January 22 apparently to provide legal cover to enforced disappearances.

Criticising section 3-(2) (a) of the ordinance, the petitioner said it was the same as giving a license to kill to the law enforcement agencies.

Under the section, an officer of the police, armed forces and civilian armed forces may “open fire or order the firing upon any person or persons against whom he is authorised to use force”.

Such an officer may also enter and search, without warrants, any premises to make an arrest and can “arrest without warrants any person who has committed a scheduled offence”.

According to Section 5-5 of the ordinance, a person may be declared an “enemy alien” if he failed to prove his identity and “shall be presumed to have joined war or insurrection against Pakistan”.

Likewise, under Section 6, an unidentified person may also be detained.

The government may, by an order in writing issued by the Ministry of Interior secretary, authorise preventive detention of a person for a period not exceeding 90 days.

Sohail said under Section 9 of the ordinance related to the transfer of custody, inquiry, investigation and trial anywhere in Pakistan.

The lawyer said the transfer of a case was in the domain of high courts and the government could not be allowed to assume powers of high courts.

He said under Section 12 of the ordinance, the government shall take appropriate measures to provide adequate security to prosecution witnesses, investigating officers, prosecutors, special judicial magistrates and judges of special courts and for this purpose it may establish safe houses and high security prisons.

The counsel feared that the safe houses may be misused leading to more cases of missing persons.

He said officials of the district management group (DMG) would be accommodated on judicial posts as under Section 8 (5), the government may appoint any “officer of not less than BPS-18 of the Pakistan administrative service or the provincial management service as a special judicial magistrate” in consultation with the chief justice of the high court concerned.

Contrary to the settled principles of law where an accused is presumed innocent and it is the duty of the prosecution to bring evidence against him, the ordinance treats an accused person as an enemy until he brings proofs of his innocence.

The counsel pointed out that through the ordinance, powers of high courts had been taken away.

The decision of the proposed special courts might only be challenged in the Supreme Court, he said.

Sohail said the ordinance trespassed on the jurisdiction of high courts and should be struck down in the interest of justice.

Published in The Express Tribune, March 15^th, 2014.