The Pakistan Forum for Democratic Policing (PFDP) a coalition of human rights organisations* and individuals expresses grave concern over two recently promulgated Ordinances by the government which
The first ordinance was promulgated on October 11 and serves as an amendment to the Anti-Terrorism Act, 1997 (hereafter ATA Amendment), while the second, named the Pakistan Protection Ordinance (hereafter PPO), was approved on October 20. It should be noted that both Ordinances, as per Article 89 of the Constitution, will expire within 120 days of promulgation if not approved by Parliament.
Some of our principal concerns are:
· Both Ordinances contain numerous similar provisions which buttress police powers of use of force without proportional safeguards. A provision in the ATA Amendment gives shoot at sight authority to police and armed forces who, “after forming reasonable apprehension that death, grievous hurt or destruction of property may be caused by such act” can fire at a suspect. The PPO contains a similar provision under Section 2(a) which allows police, armed forces and civil armed forces to fire or order the firing upon anyone committing or likely to commit a scheduled offence. There is no stipulation in either making the use of force an absolute last resort, or ensuring proportionality of the force exercised. The PPO is even more concerning in this regard in that it bestows blanket exemption to the law enforcement apparatus under clause 19, which reads “No member of the police, armed forces or civil armed forces acting in aid of civil authority, Prosecutor General, prosecutor, Special Judicial Magistrates or the Judge of a Special Court shall be liable to any action for the acts done in good faith during the performance of their duties”.
- Both Ordinances provide for preventive detention for offences, and the PPO goes excessively far in this regard. In furtherance of the above provisions, section 5(5) of the PPO also provides authority to police and civil and armed forces to arrest and label persons whose identity is “unascertainable” as “enemy aliens” and presume that they are waging war or insurrection against Pakistan. Section 14 of the PPO further presumes guilt of a scheduled offence and the burden is on the accused to establish non-involvement on war or insurrection against Pakistan. Preventive detention for up to ninety-days is also authorized for those within the purview of 5(5), including those whose identity is unascertainable. This could very easily leave latitude for exacerbating enforced disappearances by state forces, which the Chief Justice recently claimed was in part due to security forces.
- Both Ordinances contain troubling provisions related to investigation of offences. The ATA Amendment seeks to fast-track investigation and allows for convictions solely on the basis of electronic or forensic evidence. Convicting solely on “electronic” evidence could lead to further internet censorship and attacks on privacy. The PPO goes in the other direction and allows for a hugely extended period of police custody if the investigation is not completed. In Section 5(4) of the PPO, a Special Judicial Magistrate is empowered to grant police custody for up to ninety days, which is far above the maximum limit allowed in ordinary criminal law. The dangers and potential for the use of torture by the police to extract information is heightened with this much time allowed in police custody.
· Both Ordinances infringe upon the United Nations International Covenant on Civil and Political Rights, including but not limited to Articles 9, 10, 14, 17, and 26.
· Both Ordinances infringe upon the rights of citizens as enshrined in the Constitution of the Islamic Republic of Pakistan, including but not limited to Articles 4, 8, 9, 10, 14, and 25.
With their adverse effects on civil liberties and human rights, legal instruments such as these make democratic police reform an even more distant goal. Already there is little to show by way of systemic reform of the police in Pakistan – there is no renewed energy around drafting a progressive federal police law since the time lost over the 2002 Police Order, and in the vacuum, the provinces of Sindh and Balochistan have reverted back to the Police Act of 1861. Independent police accountability bodies have not been established. This is regressing rather than moving forward.
We urge for vigorous debate in Parliament and widespread consultation before addressing these two Ordinances when it is next in session in November. It is hoped the recent legal challenge to the PPO in the Islamabad High Court will delve into issues of concern. In addition to their huge potential impact on fair trial rights, these Ordinances spell dangers for policing by moving the police toward increased powers in the absence of increased accountability and safeguards.
*Core members of the Pakistan Forum on Democratic Policing (PFDP) Rozan, Shehri – CBE, Centre for Peace and Development Initiatives (CPDI) Strengthening Participatory Organizations (SPO) and Aurat Foundation