ISLAMABAD - The provisions of Pakistan Protection (Amendment) Ordinance 2014 are entirely identical with the Rowlatt Act which was passed by the British Empire for a slave nation, but the same law has been promulgated for an independent nation governed by a Constitution containing fundamental rights.
Tariq Asad, advocate Supreme Court, and Col (Retd) Inam-ur Rahim, advocate High Court, have jointly filed the petition in the Supreme Court on Monday against the Ordinance under Article 184 (3) of the Constitution, making the federation through secretary ministry of law and justice, secretary interior and principal secretary of the president.
The Rowlatt Act was passed by the Imperial Legislative Council in London on 10th March 1919, indefinitely extending “emergency measures” (of the Defence of India Regulation Act) enacted during the First World War in order to control public unrest and root out conspiracy, in India.
The Rowllat Act effectively authorised the government to imprison for up to two years, without trial, any person suspected of terrorism living in the Raj and gave the imperial authorities power to deal with revolutionary activities. The unpopular legislation provided for stricter control of the press, arrests without warrant and indefinite detention without trial. The accused was denied the right to know the accusers and the evidence used in the trial.
They said the provisions of the Ordinance are inconsistent with the fundamental rights of the citizens of Pakistan as it gives no protection to the citizens of Pakistan who are abducted by the law enforcing agencies in an unlawful manner. They have prayed to the court to declare the Protection of Pakistan Ordinance 2014 ultra vires of the Constitution.
They contended that various provisions of Ordinance are inconsistent with the fundamental rights of the petitioners and all the people of Pakistan. Section 3 of the Ordinance is inconsistent with Article 9, 10 and 10-A of the Constitution. Clause (c) of sub-section (2) of Section 3 of the Ordinance is in contravention with inter alia Article 14 and 24 of the Constitution that any such officer may enter and search, without warrant any premises to make any arrest or to take possession of any property, fire-arm, weapon or article used, or likely to be used, in the commission of any scheduled offence.
Sub-Section 3 of Section 5 of the Ordinance is inconsistent with Article 10 of the Constitution. Section 6 of the Ordinance is inconsistent with Article 10 of the Constitution.
Section 7 and 9 are inconsistent with Article 10-A of the Constitution. Section 14 of the Ordinance is entirely against the established law of the land that one is innocent unless otherwise proven by law to be guilty whereas the said section means that everyone is guilty unless proved by one otherwise to be innocent. Sub-section 4 of Section 6 of the Ordinance (as amended) is of retrospective effect which is against established law particularly in criminal cases.
No law including the Preventive Detention Laws, are above the Constitution. But the impugned Ordinance gives ample powers to the Law enforcing agencies to infringe the fundamental rights of the citizens and act in an unlawful manner.
The inviolability of dignity of man has been guaranteed in Article 14 of the Constitution of Islamic Republic of Pakistan. The right to dignity and right to life and liberty has been greatly emphasised by the Supreme Court in the judgement cited as 1996 SCMR 206, the petition contends.