(Feb. 11, 2014) On February 7, 2014, the National Assembly of Pakistan, the lower house of the country’s legislature, passed a resolution to extend three anti-terrorism ordinances for a 120-day period, including the controversial anti-terrorism law, The Protection of Pakistan Ordinance (PPO). Among other measures, the PPO grants extensive arrest and detention powers to security agencies in the context of military- and terrorism- related operations. (Ordinance No. 9 of 2013, GAZETTE OF PAKISTAN (Oct. 21, 2013).) The PPO has come under heavy criticism from human rights groups and opposition political parties. (Nasir Iqbal, Indefinite Detention Gets Legal Cover, DAWN.COM (Jan. 23, 2014).)
In the then absence of a sitting Parliament, the law was originally promulgated as an ordinance by the President of Pakistan in late October 2013, pursuant to article 89 of Pakistan’s Constitution. (The Constitution of the Islamic Republic of Pakistan (as amended through Apr. 20, 2010), art. 89, National Assembly of Pakistan website.) On January 22, 2014, the President promulgated another ordinance, The Protection of Pakistan (Amendment) Ordinance, which amended the PPO with far more stringent provisions. (Ordinance No. 1 of 2014, GAZETTE OF PAKISTAN (Jan. 22, 2014).)
Some of the controversial clauses in the newly amended PPO include:
- granting security agencies extensive powers of arrest, search, and seizure without a court-ordered warrant (PPO §§ 3(2)(b)-(c));
- allowing the government to authorize preventative detention of a person for up to 90 days “if there are grounds to infer that such person is acting in a manner prejudicial to the integrity, security, [or] defense of Pakistan …” (id. § 6(1));
- permitting indefinite detention for a person who is designated as an “enemy alien” or “combatant enemy” (id.);
- giving power to military and civil law enforcement forces to establish internment camps to “detain any enemy alien, combatant enemy, or any person connected or reasonably believed to be connected with the commission of a Scheduled Offence … ” (id. § 6(2));
- providing legal cover for past arrests and detentions by security agencies, stating “any person arrested or detained by the Armed Forces or Civil Armed Forces and kept under arrest or detention before the coming into force of this Ordinance shall be deemed to have been arrested or detained pursuant to the provisions of this Ordinance” (id. § 6(5)). This provision is particularly controversial because it attempts to provide legal protection for alleged enforced disappearances of terrorism suspects during past military and anti-terrorism operations, disappearances that are currently subject to being handled as missing persons cases (Nasir Iqbal, Legal Experts Reject PPO, DAWN.COM (Jan. 25, 2014); and
- establishing separate special anti-terrorism courts and a separate prosecuting agency (PPO § 8).
In addition, the new legislation gives courts the power to strip persons of their citizenship (id. § 15). As a result, such persons may be designated as “enemy aliens” (id. § 2(d)).
According to article 89 of Pakistan’s Constitution, ordinances must be laid before either house of Parliament to be extended or passed as law by both Houses of Parliament. Failure to do so will result in their lapse. Once an extension has been made, moreover, it can only be made once more. (The Constitution of the Islamic Republic of Pakistan, supra, art. 89(2)(a)(ii).) Because the law was facing fierce resistance in Parliament, the government decided to pursue an extension for another 120-day period through a resolution of just the National Assembly, where the government has a majority, and deferred attempting to pass the law through the full legislature. (Irfan Ghauri, Contentious Clauses: PPO Runs into Wall of ‘Opposition’ in Senate, THE EXPRESS TRIBUNE (Feb. 5, 2014); Peer Muhammad, Opposition Disgruntled: Disapproval as Three Ordinances Extended, THE EXPRESS TRIBUNE (Feb. 7, 2014).)
The PPO is also subject to two separate petitions, one in the High Court of Islamabad and the other in the Supreme Court of Pakistan, that challenge the law’s constitutionality. The Supreme Court has yet to take up the matter. (Obaid Abbasi, Pakistan Protection Ordinance: Law Repugnant to Fundamental Rights, Civil Liberties, Say Experts, THE EXPRESS TRIBUNE (Feb. 4, 2014).)