In an effort to improve the laws and institutions dealing with prosecution of terrorists, the PML-N government took a number of measures, such as enacting the Protection of Pakistan Act (PoPA) and the notification of the National Counter Terrorism Authority (Nacta) as the focal body for coordination of anti-terror efforts.

However, thanks to redundancies, a lack of interest from the concerned quarters and resistance from other departments, these new laws and bodies did not prove to be of much use.

As PoPA reaches the end of its life and Nacta shows no signs of rejuvenation, this special report examines the reasons behind their ineffectiveness.

• Just around 30 cases registered under PoPA over past year and a half • Overlaps with other legislation, definitional problems plague new laws • Key posts vacant in centre, provinces •

In hindsight, the promulgation of the Protection of Pakistan Act (PoPA) seems to have been a ‘futile’ exercise, given that the legislation is going to expire in July this year without any concrete results.

PoPA was promulgated in July 2014 with a sunset clause of two years; it will expire in the summer of 2016, having been used to register only a couple of dozen cases since its inception.

Dawn has learnt that just around 30 cases have been registered under this act over the past year and a half.

Special Secretary for Law and Justice Raza Khan says that there is no plan to extend PoPA after its expiry in July this year.

The act was a ‘war-time’ law, said Barrister Syed Ali Zafar, which was to be used to indict suspected terrorists who indiscriminately targeted civilians and hence did not ‘deserve’ the protections provided by fundamental rights that are built into the judicial system.

“It was aimed at the speedy conviction of hardcore terrorists,” he said.

Others echo this view, pointing out that the Anti-Terrorism Act (ATA) 1997 was proving insufficient to deal with the extraordinary circumstances facing Pakistan; in the words of the law itself, it was to provide “protection against waging of war or insurrection against Pakistan”.

For Ahmer Bilal Soofi, a former federal law minister, PoPA had the advantage of being one of the first legislative instruments that very clearly conveyed “we are in a state of war and non-state actors are waging war on the state of Pakistan”.

However, the law was not used, due to a number of reasons, which ranged from the controversy surrounding it; its criticism by rights organisations; the government’s reluctance to implement it and overlaps with successive legislation.

Initially, the PML-N government introduced the Protection of Pakistan Ordinance in late 2013, but it was challenged in the courts.

The government ultimately laid it before parliament in July 2014, where after amendments the law was adopted for two years.

Offences that fall under PoPA include: crimes against ethnic, religious and political groups, use of nuclear arms, suicide bomb attacks, killing, kidnapping, extortion or attacks on members of parliament, judiciary, executive, media, officials of armed forces, aid workers.

The law also covered attacks against energy facilities, airports, gas pipelines and grid stations, educational institutions, mass transport system and violence against foreign nationals.

It also made crossing national boundaries illegally a crime punishable under the PoPA.

Redundancies

However, shortly afterwards, these offences were also made part of ATA in June 2014, and in December the same year, they were brought under the scope of the military courts after the 21st amendment was passed.

This move, legal experts say, is one reason that PoPA became irrelevant.

For Soofi, “PoPA created some confusion at an operational level because of its considerable overlap with the ATA. For the investigators on the ground, it was not clear as to which law should they rely on for registering the FIR.”

Similarly, former standing counsel Barrister Jahangir Khan Jadoon said. “Certain offences of PoPA have been included in the Pakistan Army Act (PAA) and law enforcement agencies were unsure of whether to book an accused under PoPA or refer the case to the military courts.”

However, PoPA was not used very frequently in the period before these amendments.

According to some, this was partly due to the poor drafting of the law.

Definitional problems

The lack of clarity is evident if one looks at the law’s use of the term ‘enemy alien’ for those accused of crimes such as attacks, killings and kidnappings.

PoPA defines an enemy alien as one “whose identity is unascertainable”. It added that in cases where the accused fails to prove his or her nationality or proof of residence, the prosecution had to prove that the accused was “an enemy of the state”.

In other words, the burden of proof lay on the accused rather than the prosecution.

Section 15 of PoPA stated that an enemy alien or a militant facing the charge of a scheduled offence “shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offence”.

However, this is not how prosecutors view the issue.

For them, PoPA’s definition of where the burden of proof lay did not affect other laws, which put the burden of proof on the prosecution. These include Qanoon-i-Shahdat (law of evidence) and the Criminal Procedure Code (CrPC).

In their opinion, the defence would invoke these laws to argue that the prosecution had to prove guilt.

The law of evidence, which defines how to present evidence in court against an accused, places the burden of proof squarely on the prosecution.

Senior lawyer Hasnain Ibrahim Kazmi argued that PoPA should have been given overriding effect to the relevant clause of Qanoon-e-Shahadat, enabling the prosecution to proceed against the suspects in accordance with the PoPA.

But this was not done, and as a result “it was difficult to prove that an accused was an enemy of the state”, pointed out a prosecutor who did not want to reveal his identity because he is not allowed to talk to the media.

And PoPA did not provide any guidelines on how to establish if someone was an ‘enemy alien’.

The prosecutor said that when the prosecution produces an accused before the court the defence lawyers could get the accused absolved from the charges as “PoPA does not define the parameters to prove whether someone is an ‘enemy alien’.”

Handful of cases

A combination of these factors meant that very few cases were registered under PoPA.

Of the 30 cases registered under PoPA, only five were registered in four districts - Rawalpindi, Jhelum, Attock and Chakwal. These included the attack that claimed the life of Punjab home minister Shuja Khanzada and the kidnapping of Punjab MPA Rana Jameel.

Col Khanzada was killed in a suicide attack on August 16, 2015 while he was in his native village in Attock. At least 14 people, including the Punjab home minister, died in the suicide blast.

MPA Rana Jameel was kidnapped in May 2014 near Pindi Bhattian. He had gone there to attend a funeral and was kidnapped.

Once the military courts came into being, though, everyone lost interest in PoPA; for the government and the prosecution assumed that all the serious cases would be sent to the former.

Not a priority?

The government never made a serious effort to provide the money and the infrastructure needed for PoPA, either.

From the very outset, the federal government didn’t appoint a full time prosecutor general to handle PoPA cases in Islamabad; the charge of the position was given to advocate general Islamabad, Mian Abdul Rauf, who seldom handled criminal cases.

The provincial governments also did not appoint permanent prosecutors for PoPA cases; instead they asked their respective district prosecutors to handle these cases without offering any additional incentives.

The government did not even establish separate courts for the trial of cases registered under PoPA, but nominated a few judges from anti terrorism courts to deal with PoPA cases in addition to their routine work load.

In other words, the entire system was run on an ‘ad-hoc’ basis.

Given this attitude, unsurprisingly, the important position of PoPA judge in Rawalpindi remained vacant for several months in 2015 as the government mulled over whether or not to give the additional charge to an ATC judge.

An ATC judge, Pervez Ismail Joya, was given the position in January 2015, but was posted to another city just four months later.

The PoPA post lay vacant till July, when the government issued a notification to fill the vacant slot under the orders of the Lahore High Court.

Likewise, the position of PoPA prosecutor in Rawalpindi also remained vacant from September 2015 to January 18, 2016.

Similarly, the additional charge of PoPA prosecutor is held by Zahoor Sibtain, whose original duties are those of a district public prosecutor. He has been offered no additional incentive – monetary or security measures – for the work he is supposed to do under PoPA.

Special secretary Law and Justice Raza Khan said that the government made makeshift arrangements to handle PoPA cases because it was “a temporary law therefore the government did not make permanent appointments.”

Nacta an unfinished agenda of NAP

Strengthening the National Counter Terrorism Authority (Nacta) was one of the key features of the 20-point National Action Plan (NAP) the government adopted after the December 16, 2014 terrorist attack on the Army Public School (APS) in Peshawar.

But over a year later, the authority remains as dormant as it was before NAP.

Though the government has appointed Ihsan Ghani as its national coordinator, legally speaking, Mr Ghani is not in a position to exercise administrative power, utilise any funds or make any appointments without the mandatory approval of Nacta’s board of governors (BoG).

Nacta was established through an act of parliament in March 2013 to curb terrorism, streamline intelligence gathering and plan counter-terrorism strategies.

According to retired Air Marshal Shahzad Chaudhry, Nacta’s set up was different from traditional intelligence agencies. Nacta envisions its own response force and its intelligence gathering infrastructure includes multiple agencies and departments, theoretically giving it wider powers than exisiting civilian and military intelligence agencies.

92 employees who were transferred to Nacta from NCMC have refused to join the authority

Nacta was also meant to provide policy guidelines for law enforcement agencies and the provincial governments at the grass-roots, he said.

The act provides for a BoG, which then delegates financial and administrative powers to the national coordinator.

However, not a single meeting of the BoG has been held in three years.

A senior Interior Ministry official told Dawn that in January this year, Nacta requested the prime minister to convene the BoG. A response from the Prime Minister’s Secretariat is still awaited.

Nacta’s BoG includes the prime minister as its chairman, while the provincial chief ministers, the chief minister of Gilgit-Baltistan, prime minister of the AJK, interior minister, law minister, defence minister, finance minister, DG ISI, DG Intelligence Bureau, DG Military Intelligence, DG FIA, chief secretaries and inspectors general of all the provinces and the secretary interior are its members.

In the act, sub section 3 of Section 11 says, “all appointment of officers and staff shall be made with the approval of the board”, but Mr Ghani claims that the act does not place such a bar.

Senior lawyer and Pakistan Bar Council (PBC) member Mohammad Shuaib Shaheen was of the opinion that the national coordinator can only take decisions on the day-to-day affairs of the authority.

Though the federal government insists that Nacta is operational and has over 65 officials and staff, sources in Nacta claim that 35 of them are auxiliary staff, such as drivers, peons and clerical staff.

In addition, it appears that all the officers there are on deputation from some other department.

Many of them are from defunct ministries that lost their raison d’être after devolution under the 18th amendment. One of these employees is also a former reporter from the Associated Press of Pakistan.

But Nacta’s woes don’t end here.

Ninety two employees who were transferred to Nacta are refusing to join it. These individuals were working in the National Crisis Management Cell’s (NCMC) head office at Islamabad and regional offices in the four provinces, and were transferred to Nacta when the government decided to merge NCMC with Nacta a couple of months ago.

The interior ministry has already transferred the Rs45 million budget of the NCMC to Nacta and as a result, salaries of NCMC staff have been stopped by the accountant general of Pakistan for revenue.

NCMC officials, however, are resisting the merger and wrote to the director general to complain against their ‘forced’ deputation.

Former NCMC director general retired Brigadier Javed Iqbal Cheema told Dawn that the cell could have been used as an effective tool in NAP, had it been handled effectively.

Under Gen Pervez Musharraf, the NCMC was a more effective institution, taking a lead role in actions such as monitoring the Lal Masjid operation and overseeing the security of foreign dignitaries, including Chinese engineers.

“The interior minister has been ‘ill-advised’ in this matter,” he said.

NCMC employees are civil servants and cannot be absorbed into Nacta or any other autonomous body, Brig Cheema claimed, adding that the move would affect the terms and condition of employees’ service, their seniority, promotion and retirement-related benefits.

These employees have now decided to approach the high court to challenge their merger with Nacta.

When Dawn approached the interior ministry, its spokesman said that Nacta National Coordinator Ihsan Ghani was the relevant person to talk to.

Mr Ghani admitted that while Nacta was facing “human resource issues”, the issue would be resolved amicably.

Hanging witnesses out to dry

Hamdullah, 44, a tall, lanky man, was waiting on the footpath near the judicial complex in sector G-11 for a free ride on a chilly morning.

As he chatted on his phone while he looked around for a sympathetic driver, Hamdullah didn’t stand out; he appeared no different from the many others who wait for the unreliable public transport buses in Rawalpindi.

However, Hamdullah had just testified in an Anti-Terrorism Court (ATC) in a high profile case. That morning, he got a lucky break as the prosecutor in the case offered him a lift till the F-8 district courts, from where Hamdullah caught a van to get home, in an Islamabad suburb.

Hamdullah had testified for the prosecution in the judges’ detention case.

Though Hamdullah does not face a threat to his life because of his testimony, many others who do appear as witnesses in terrorism cases do, as do judges and prosecutors.

However, witnesses in particular do not get any protection from the state and few of the prosecutors and judges do.

Lack of witness protection mechanisms put those who testify at risk; even senior police officers reluctant to testify in high-profile cases

There are a number of witnesses who come to the ATC to record statements in high profile cases – even where proceedings are held in-camera, ostensibly to protect the identities of those involved.

However, the exercise is futile because those involved – including the witnesses and the lawyers – then walk out of the court room in full view of everyone to sit in their parked cars or motorbikes or wait for public transport.

And this happens despite all the legislation that calls for protection of witnesses and others.

PoPA provides for this, as does the ATA 1997. Under Section 21 of the ATA, the witness deserves the same security as judges and the prosecutors. These provisions were added to the law in 2014.

However, the protection of witnesses, judges and prosecutors were earlier introduced in the Protection of Pakistan Ordinance in 2013, which later became an act of parliament.

The government then incorporated identical clauses in ATA.

According to a lawyer, since PoPA had a sunset clause, there was a need to provide the protection clauses in the ATA. But neither law provided a respite.

In reality, the federal and provincial governments provide nominal security to the judges while the prosecutors and witnesses are completely unprotected.

The prosecutors come to the court on their own conveyance; some of them use motorbikes and are provided no security.

The witnesses are left vulnerable, just as Hamdullah was.

All that the ATCs do in the name of security is to hold in-camera proceedings, which appears to achieve little apart from keeping journalists away from the proceedings.

Some of those involved don’t think that anything more can be done. A prosecutor, for instance, says: “If there are 100 cases and every case has over 50 witnesses, then one cannot dream of providing security to the witnesses.”

But the law calls for protection.

The 2014 amendments to the ATA provide specific measures for the protection of witnesses: use of screens to shield them from public view, trial through video link; a strict ban on use of mobile phones in the jail premises.

In addition, the amendments also suggested that the government establish a witness protection programme.

According to Raja Rizwan Abbasi, a criminal law expert, in the United States for example, the government provides broader protection to witnesses, including keeping them in safe-houses during the trial, concealing their identity and in some circumstances, transferring them to another state where they are given a new identity. The state is also responsible for their rehabilitation which includes housing and employment.

The protection of witnesses is also included in India’s Prevention of Terrorism Act (PoTA), where the identity of witnesses is kept secret and during the trial the witness can be kept in an undisclosed location in the protection of law enforcement agencies, said Abbasi.

However, no such programme has ever been chalked out in Pakistan. And as a result, witnesses continue to be under threat, especially as their names are made public.

The public prosecutor pointed out that the prosecution has to provide names of the witnesses to the lawyer of the accused under the law. At every date of hearing, the court issues summons for witnesses and anyone can find out their names and identity.

“How can the witnesses be protected when their names have to be provided to those he or she is testifying against,” he said.

The fear of being assassinated even stopped a serving police officer from testifying in a high profile murder case.

Criminal Investigation Department (CID) Sub Inspector (SI) Ashfaq Ahmed avoided testifying in the Benazir Bhutto murder case. The ATC had summoned him in 2013 but Ahmed switched off his mobile phone and took leave from work. Later, the FIA produced before the court a written complaint from Ahmed in which he claimed that he had received threats from the TTP.

“It is not necessary that every witness in every case should be given official protection; instead, the government or the trial court should decide the level of protection and which of the witnesses need it,” suggested Abbasi.

“Terrorism-related legislation would remain futile unless the witnesses are given the proper protection and sense of security,” he added.

His views are shared by others.

“The government has failed in witness protection and protection of judges as required by the law, though it still does have an opportunity to fulfill the said legislative pledge, which in any case it is required to do under the two year time frame given in 21st amendment,” commented Ahmer Bilal Soofi, a lawyer and former federal minister.

This is not all that the government has failed to do under ATA and PoPA – it has also failed in their foremost objective of concluding a trial within a stipulated time-frame.

Before PoPA, the Anti-Terrorism Act was introduced back in 1997 to hold and conclude trials in “seven working days”.

However, not a single Anti-Terrorism Court (ATC) has ever concluded a terrorism case within a week. Instead, terrorism cases tend to linger on for months and years in the courts.

The murder case of Benazir Bhutto has been pending before the Rawalpindi ATC since early 2008. The case is still far from its conclusion.

Published in Dawn, February 15th, 2016