While the operation by the armed forces against the foreign and domestic terrorists in North Waziristan Agency (NWA) has been under way since June 15, the prime minister has also unequivocally declared war against militancy. The military and political commanders-in-chief thus appear to be finally speaking with one voice after a period of discordant security and political narratives.

A nation at war certainly requires all the necessary tools for protection against insurrection and prevention of acts threatening its security. Viewed in this context, the Protection of Pakistan Act (PPA), passed by the National Assembly and the Senate, amounts to a declaration of war against militants across the country over the next two years. However, the elected representatives have gone too far to accommodate the needs and desires of the security agencies battling the militants. While some safeguards have been put in place, certain aspects nevertheless raise concerns. I have listed these below and made some recommendations to meet the ends of justice.

The first pertains to the term “enemy alien”, defined for the first time in any national legislation. Who will ascertain the identity of an enemy alien? While it may be comparatively easy to determine the status of some foreigners, the aliens who were encouraged since 1980s to converge in Fata and other regions bordering Afghanistan, some of whom obtained Pakistan national identity cards, got married and had children who were born here, but who all along considered themselves participants in a cosmic ideological war, would pose a challenge to the authorities. Moreover, proper, justiciable procedures should be drawn up for the deportation of foreigners living illegally in Pakistan.

The second issue relates to the very broad and thus liable to be misused definition of a “militant” as one who “threatens or acts or attempts to act in a manner prejudicial to the security, integrity or defence of Pakistan”. The more rational approach would be to follow the Anti-Terrorism Act 1997 that entails listing sectarian terrorists and activists under the Fourth Schedule for monitoring and follow-up. These are not covert lists and include mostly members of banned militant organisations. Banning persons rather than organisations is more effective as the latter continue to operate under different identities whereas suspected militants can be directed to curtail their movement or restricted through administrative and legal measures.

Elected representatives have gone too far to accommodate the needs of the security agencies battling the militants

Then there are the controversial ‘shoot to kill’ clauses of the PPA. While police officials of BS-15 rank or higher can order firing as a last resort, there is no restriction on the rank of officials of the civil armed forces and the military to authorise firing. In my view, only a gazetted police officer ie deputy superintendent or assistant superintendent in BS-17 and a captain or equivalent ranking officer of the civil armed forces or military may, by way of last resort, issue the order to fire at a militant who is armed and demonstrating his intention to shoot at the raiding party. Moreover, any death as a result of firing by civil or military personnel should invariably be inquired into by the judicial authorities. The option of an internal inquiry by the same law-enforcement agency is simply unacceptable, given the history of cover-ups by our agencies.

The fourth issue pertains to preventive detention. In the case of Pakistani militants, their families have a right to know the location of the notified detention facility where they are being kept. Moreover, the period of enemy aliens’ detention should not be unlimited and left at the discretion of the arresting authorities. Consular services and the right to notify family should not be denied even to an enemy combatant. Special courts to try militants and enemy aliens should be constituted by the high courts and not by the government. And above all, the PPA should not be applicable with retrospective effect for those in custody prior to the passage of this law.

Placing the burden of proof on the accused is also problematic besides being testimony to the fact that the state has acknowledged its limited capacity and lack of professional commitment to prosecute the terrorists by collecting substantial evidence to prove their guilt. However, the courts have interpreted this to mean that the initial onus of proof shall always be on the prosecution and shall shift to the accused only after the prosecution faithfully discharges its basic function of placing before the court sufficient evidence to prove the charges against the accused. The military and the police often shift the blame on the courts for acquitting the suspects and do not admit their failure in investigation, not collecting arrestable evidence and not relying on circumstantial, technical and scientific evidence to successfully prosecute the terrorists.

The last, but not the least, issue relates to the amendment of the schedule of offences specified in the PPA. The federal government has taken upon itself to amend, add, modify or omit any offence contained in the schedule which was approved by parliament. The executive should not encroach upon the role of the legislature as was done in case of the Anti-Terrorism Act in which offences that have no link with acts of terror were included. Such unbridled authority is likely to be misused, given the religious, political, ethnic and sectarian fissures in our body politic.

Rather than promising the army more legislation along the lines of the PPA, the prime minister and his team should devote more time and energy towards building safeguards so that a balance can be achieved between security imperatives and the liberty of individuals. While bestowing more authority on state functionaries, there is an urgent need for parliamentary and judicial oversight of the operations of the security and intelligence agencies. In the long term, it is the rule of law, good governance and socio-economic justice that will defeat the militants.

The writer is a retired police officer.

Published in Dawn, August 12th, 2014