The Case Against The Extension Of The PoPA
The Protection of Pakistan Act (PoPA), one of the major anti-terrorism laws in Pakistan, expired a few days ago. It was promulgated in July 2014 with a two year sunset clause. In this way the PoPA has come to an end after completing its prescribed age. The present government has every intention of extending it further by getting the approval from both Houses of the Parliament. But acting according to its routine practice, the government was in a deep slumber so far and is coming into action only after the expiry of the PoPA. Had the process of legislation been confined to the National Assembly the government would have had no problem; as it can pass any law by a simple majority there. But it will face problems in the Senate where it doesn’t have a majority and will need the support of the opposition political parties to pass laws. Be that as it may, this development invites our attention to the legal front of the struggle against terrorism in Pakistan because we know that by the end of the current year, our Parliament will also have to decide what the the future holds for the 21st Constitutional Amendment, which provides for trials of civilians in military courts for terrorism related offenses. Again that is because of the two years sunset clause in the aforementioned Constitutional Amendment according to which it is to expire in January next year.
Thanks to the notorious policy of denial regarding the terrorist problem, Pakistan didn’t have effective anti-terror laws for a long time. Despite the fact that the top operatives of the Al Qaida, the Islamic Movement of Uzbekistan, the East Turkestan Islamic Movement, the Jamat-ud-Dawa, the Taliban and other dangerous national and international terror networks were active here, the Musharraf regime played down the problem by calling it the propaganda of the “Yahood-o-Hanood” (Hindus and Jews). Musharraf tampered with the Constitution but did not bring in effective anti-terror laws. So the country could not develop a counter-terrorism strategy, effective anti-terror laws, high security prisons and other anti-terror infrastructure. The entire war on terror was confined to a few local operations in FATA, rationing out Al Qaida prisoners to the US and the carrying out of drone strikes. After the general elections in February 2008, the PPP led coalition government had a clearer policy against terrorism. It fully supported the provincial government in Khyber Pakhtunkhwa during the military operation in Swat.
But the PPP government, despite having the political will required for taking on the menace of terrorism, suffered from two major limitations. First, after completing operation against the Taliban in Swat, the country’s security establishment was not ready to launch a full fledged operation in FATA in general and in North Waziristan in particular. It is quite fashionable these days to blame the former Chief of Army Staff (COAS) General Kayani for this. But that doesn’t seem to be the case as it was policy of the security establishment as a whole and not that of an individual. Actually it was directly connected with the country’s Afghan policy. Terrorist infrastructure in FATA, the main sanctuary of the Taliban in their fight across the Durand Line, was not to be demolished before Taliban could launch their final military push in Afghanistan, because it could have been a set back for the Taliban. Hence the deliberate inaction. Second, the PPP government didn’t have even a simple majority of its own in the National Assembly. It had to seek the support of the opposition parties for the passage of laws. Religious political parties in general and JUI-F in particular fully exploited this situation by blocking anti-terrorist legislation. So the legal vacuum in the war on terror became quite serious after the military operation in Swat. There were quite a number of prisoners in the custody of the armed forces during and after this operation and the government didn’t have the legislative framework to handle the situation. Under pressure from the army and searching for a way out, the government promulgated Action in Aid of Civil Power Regulation 2011, an extremely draconian and black law. By providing for the so called ‘internment centers’, the FATA Regulation provided legal cover to the armed forces for keeping prisoners accused of terrorist offenses in their custody.
The PPP government did amend the 1997 Anti Terrorist Act just before the end of its constitutional term although it had to make many adjustments and compromises. So, after the commencement of Operation Zarb-e-Azb in North Waziristan in June 2014, the question of an effective anti-terror law to reinforce the legal front in the war on terror was raised once again. The main argument in favour of the extremely draconian PoPA was that Pakistan is in the middle of a war against terrorism and it needs harsh laws to deal with this menace. The PoPA empowers the security agencies to keep the accused persons in prolonged custody and even shoot to kill where necessary. The jurisprudential principle of innocent until proven guilty has been completely discarded in this law and the burden of proof has been shifted onto the accused person. Opposition political parties had serious reservations about the draconian nature of the law. The sunset clause of two years was made part of the law to assure the members of Parliament that it is an extraordinary piece of legislation for an extraordinary situation to be in existence for a limited period.
The government’s case for further extension of the PoPA is extremely weak for the following reasons. One, special courts under this law have remained totally ineffective. These courts remained non functional for quite some time. Even when the special courts were operationalized, they failed to prosecute persons accused of committing terrorist offenses. Two, the 21st Constitutional Amendment providing for military courts for civilians, that came into effect January 2015 is proof of the uselessness of the PoPA. Three, at the time of the PoPA’s approval, the government repeatedly assured the Parliament that it will be used only against “jet black terrorists”, but it has been grossly misused against innocent people, from the slum dwellers of Islamabad to tenants in Okara. There are other numerous examples. Four, instead of creating multiple draconian legal systems, the government should opt for one law that is effective in prosecuting terrorists but is not violative of the fundamental rights enshrined in the Constitution. Five, an important factor in the rise of terror problem in Pakistan is the misconceived state policy regarding militancy. Reform in the said policy and not the oppressive laws is the way out from the present mess. Going back to and reviving the National Action Plan (NAP) can be a step in the right direction.
An earlier version of this article appeared in The Nation and is being republished here with permission.
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