Under the Pak constitution, an ordinance has a 90-day shelf life. Generally the government converts an ordinance into a law within the window; if it is not possible for any reason, it will re-promulgate the same ordinance. In the instant PPO case, the Sharif government hopes to go through the legislative drill quickly and with ease since the military enjoys the status of a Holy Cow and brings all parties to the same page when the interests of the permanent establishment of the country are involved. The fact of the matter is that Sharif government has done its home work. And it has since presented the PPO ordinance as a draft law to Parliament.
The primary aim of the PPO is to provide the military with total legal immunity from activist judiciary. In recent months, the army has confronted several cases brought before civil courts, over the killing and disappearing of civilians. The new ordinance and amendments legalise arbitrary arrests and detentions carried out by “authorised officers” of the armed forces, and thus prevent further judicial trouble.
Section 3 of the PPO allows the armed forces to prevent any offence “against the country.” The armed forces have “all the powers of a police officer.” The military can use force after warning a person who is about to commit an offence, and it is “lawful” for soldiers to fire upon them. Armed forces officers “may arrest” without warrant any person “scheduled to commit an offence,” and also search any premises without warrant and arrest people.
Offences are defined in wide ranging terms. These are not limited to violent acts of terrorism, but encompass henceforth “crimes against computers including cyber crimes, internet offences” and “crimes against ethnic, religious and political groups or minorities including offences based on discrimination, hatred, creed and race.”
Section 6 gives Armed Forces Officers the power to arrest people and detain them for 90 days in the name of preventive detention on a government order. Persons alleged to be “acting in a manner prejudicial to the integrity, security, defence of Pakistan or any part thereof or external affairs of Pakistan, or public order or maintenance of supplies and services” can be taken into custody under preventive detention.
Special Courts will be established to try the offenders under PPO; these courts will have the power of high courts. Punishment can be imprisonment for not less than 10 years. The special courts also have the authority to strip alleged offenders of their citizenship.
The PPO shifts the burden of proof explicitly to the person arrested: “An accused facing the charge of a scheduled offence on existence of reasonable evidence against him, shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offence.”
For the sake of “national security,” the government will keep secret “information relating to the location of the detainee or accused or intern or internment centre.” Powers have also been given for “exclusion of public from proceedings of special courts”. It means the Special Courts can hear cases in camera or secret.
As pointed out at the outset, the PPO has been introduced as a response to judicial vigilantism that has been hauling the security forces and the secret agencies particularly ISI literally on the coal by entertaining cases of arbitrary arrests, detentions, disappearances and the killing of civilians during military operations.
The discovery of mass graves in Balochistan has made the forces vulnerable. The Balochistan government has claimed that 592 bodies of those “disappeared” since 2010 have been unearthed. However, human rights activists put the number of missing persons in the thousands.
On December 10, the Pakistani Supreme Court held the Army responsible for 35 persons reported missing from an internment centre in Waziristan. The court, in fact, publicly ticked off the Defence Minister, when he failed to give no more than one excuse or the other for the phenomenon of missing persons. The bench, hearing the case, sternly told the minister “Stop handing us lollipops.”
The defence ministry has filed a revision appeal against the verdict.
“When the army was called to assist civil authorities … the jurisdiction of the high court as well as the fundamental rights guaranteed in the constitution is suspended”, the petition drafted by the Attorney General’s office told the court and echoed the defence ministry stand that the verdict would “demoralise the troops” who were combating “terrorists”.
