IN an alarming, though not so surprising move, the government is considering extending the Protection of Pakistan Act. POPA was enacted on July 9, 2014 and was to be operational for two years in order to provide “speedy trials” for people suspected of “waging war against Pakistan”.

The government has a clear obligation to protect people in Pakistan from terrorist attacks and bring the perpetrators to justice. But the decision to extend POPA is highly problematic in meeting this obligation: not only is POPA an oppressive and tyrannical law, it has also proven largely ineffective in the two years of its operation.

When POPA was being debated in parliament in 2014, it faced strong opposition from a wide variety of groups with widely different agendas, ranging from human rights groups to political parties like Pakistan Tehreek-i-Insaf and the Jamaat-i-Islami. They all agreed on one thing: the extensive powers of search, arrest and detention given to law-enforcement agencies under POPA in 2014 could easily be misused by the authorities.

These fears have proven true in the two years of POPA’s operation. The law has been used to keep people in custody for long periods of time, including in preventive detention. The Muttahida Qaumi Movement has alleged POPA is being used in Karachi to arbitrarily arrest dozens of MQM activists. The PPP has also made similar claims, especially after the Federal Investigation Agency was given powers of detention and interrogation under POPA to “eradicate militancy” and “combat financial terrorism”.

Departure from ordinary legal procedures and safeguards in the name of fighting terrorism is counterproductive.

According to media reports, hundreds of people have been detained under POPA, a large number of them in Karachi. Charges have been brought in a few dozen cases, but special courts constituted under the act have not concluded even a single trial. This is quite a failure for a law that was enacted for the purpose of ‘speedy trial’ of terrorism suspects. Indeed, it completely undermines that primary objective.

Five special courts have so far been constituted under the act: three special courts, one each in Quetta, Lahore and Peshawar, were constituted in January 2015; one special court in Karachi was constituted in May 2015; and one special court in Islamabad was constituted in September 2015. Proceedings did not commence before any of the five special courts until early 2016. Reasons for the delay included failure of the government to provide judges of special courts facilities such as security, court staff, residences and official vehicles. The special courts are now operational, but have still not concluded a single trial.

Not only has POPA been ineffective in achieving its stated purpose — that of speedy trial — it is a highly oppressive law that gives sweeping and unaccountable powers to law-enforcement agencies. Many of these provisions run counter to Pakistani constitutional guarantees of fair trial and the right to liberty, as well as international treaties that Pakistan has ratified and is therefore obligated to implement.

For example, POPA authorises secret detention and enforced disappearance by law-enforcement agencies, security forces and investigating officers, who can withhold “any information relating to a detainee, accused or internee who is an enemy alien or a militant”. Such secret detention is in clear violation of uncontested norms of international human rights law.

The law also permits the government to authorise preventive detention for up to 90 days for broad and vaguely defined categories of people. International and regional expert human rights mechanisms have repeatedly cautioned against the use of preventive detention, calling for it to be applied in exceptional circumstances only and accompanied by stringent safeguards that are not present under the POPA regime.

Also, POPA allows members of the armed forces, civil armed forces or the police to conduct warrantless searches or arrest people without judicial approval for a wide range of vaguely defined offences, which is incompatible with the obligation to respect and protect the guarantee of the right to privacy under Article 14 of Pakistan’s Constitution and Article 17 of the International Covenant on Civil and Political Rights.

These are just some of the oppressive features of POPA. Others include extensive powers to law-enforcement agencies to use firearms; establishment of “special courts” that operate in violation of fair trial standards; and giving broad immunities to the police, armed forces or civil armed forces acting in aid of civil authority to shield them from any accountability.

POPA was purportedly an “exceptional” response for an “extraordinary situation” that demanded “speedy trial” for offences related to the “waging of war against Pakistan”. Just six months after POPA was enacted, however, the same justification was used for the 21st Amendment to empower military courts to hear terrorism-related cases as a “special measure for speedy trial”.

The experience from around the world has shown that departure from ordinary legal procedures and safeguards in the name of fighting terrorism is counterproductive, as it feeds and fuels the very violence it is meant to curtail. The UN Global Counter-Terrorism Strategy itself recognises that violations of human rights and lack of adherence to the rule of law amount to conditions conducive to the spread of terrorism.

The frustration with impunity for terrorism and serious crimes in Pakistan is legitimate, but there are no overnight solutions to a crisis caused by decades of neglect. Instead of resorting to ‘exceptional’ and ‘emergency’ measures, all institutions of the state should resolve and act to bolster the fair and effective administration of justice by strengthening the police’s capacity of investigation; improving the training of prosecutors for terrorism-related cases; ensuring protection of judges, prosecutors and witnesses; and addressing endemic issues of prolonged delays in trials, which are among the key reasons why certain perpetrators of terrorist attacks have been able to evade accountability in civilian courts.

When provisions of POPA were being debated in parliament, the government reassured opposing voices by arguing that the law was only for two years. Now that the government plans to extend POPA, political parties and civil society groups must resist this attempt to make the ‘exception’ a norm.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, July 19th, 2016