Govt, not army, to decide who will be tried in military courts

ISLAMABAD: To address the apprehensions of politicians, civil society, the media and others about the possible misuse of military courts, consensus legal and constitutional amendments, as agreed to by the political and military leadership, emerged on Friday that would not give the army the authority to try any alleged terrorist of its own choice in these courts.
Instead, it would be the authority of the federal government to decide as to which cases of alleged terrorists would be sent to military courts for trial. To further secure the proper use of new legislation, only those offences from the Schedule of Offences of Anti Terrorism Act and Pakistan Protection Act are being added to the Army Act which squarely cover the terrorist activities against community, schools, institutions, state installations and apparatus, etc.
According to sources, the political leaders present in the Friday’s meeting, while giving their consent to the legal and constitutional changes, did say that they were swallowing the bitter pill as there was no option but to go for such a solution.
According to the decision, the draft changes in the Army Act as well as the constitutional amendment bill would be presented before the National Assembly today (Saturday) and would be approved on Monday. On Tuesday next, the Senate will approve these legal and constitutional changes.
Through the constitutional amendment, four laws including the Pakistan Army Act, Pakistan Navy Act, Pakistan Air Force Act and Pakistan Protection Act will be included in the First Schedule of the Constitution. Any law included in the First Schedule of the Constitution stands exempted from the operation of Article 8 of the Constitution.
The Article 8 of the Constitution reads as: “8. Laws inconsistent with or in derogation of fundamental rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The state shall not make any law, which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The provisions of this article shall not apply to: (a) any law relating to members of the armed forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or (b) any of the: (i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule; (ii) other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter. (4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate legislature shall bring the laws specified in [Part II of the First Schedule] into conformity with the rights conferred by this Chapter; (4) Provided that the appropriate legislature may by resolution extend the said period of two years by a period not exceeding six months. Explanation: If in respect of any law [Majlis-e-Shoora (Parliament)] is the appropriate legislature, such resolution shall be a resolution of the National Assembly; (5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.”
Instead of making a new law or introducing a constitutional amendment that would talk about the setting up of special courts led by army officers, the legal way out as agreed to is to simply add, in the Schedule of Offences of the Army Act, the most grievous and gruesome offences mentioned in the Anti-Terrorist Act and the Pakistan Protection Act.
With the addition of such offences in the Army Act, the military, through its internal military court system, will try religious and sectarian terrorists involved in waging a war against the state. However, in all such offences it would be the authority of the federal government to decide as to who would be tried by the military courts. The army, on its own, can’t pick up any civilian for trial in the military courts.
The political and military leadership of the country has agreed to bring two separate amendments in the Constitution and the Army Act of 1952, Navy Act and PAF Act to establish speedy trial courts in the country headed by military officers to try hardcore and ‘jet-black’ terrorists and their abettors forthwith.
An All Parties Conference (APC) chaired by Prime Minister Nawaz Sharif decided that the amendments would be adopted in the two Houses of Parliament.
A joint declaration was issued on the conclusion of five-hour-long meeting at the Prime Minister’s House. It stated, “The leadership unanimously resolved that the entire nation and its leadership stand firmly behind its armed forces engaged in fighting the war against the evil forces of terrorism and extremism.”
Prime Minister Nawaz Sharif and Chief of the Army Staff (COAS) General Raheel Sharif played leading roles in dispelling the apprehensions and removing the reservations expressed by certain leaders who were previously opposing the idea of setting up such courts. The APC was also attended by Leader of the Opposition in Senate Barrister Aitzaz Ahsan, former president Asif Ali Zardari, PTI Chairman Imran Khan, JUI-F chief Maulana Fazlur Rehman, Leader of the House in Senate Raja Zafarul Haq, Leader of the Opposition in the National Assembly Syed Khursheed Shah, Governor Khyber Pakhtunkhwa Sardar Mehtab Ahmed Khan, Muzaffar Hussain Shah of the PML-F, Mehmood Khan Achakzai of the PkMAP, JI Ameer Sirajul Haq, Afrasiab Khattak, Ghulam Ahmed Bilour of the ANP, Chaudhry Shujaat Hussain of the PML-Q, Dr Farogh Nasim, Farooq Sattar of the MQM, Hasil Khan Bizenjo of the National Party, Aftab Sherpao of the QWP, Abbas Khan Afridi from Fata, Senator Kalsoom Parveen of the BNP, Makhdoom Amin Fahim, Sherry Rehman, Farooq H Naik, Farhatullah Babar, Rehman Malik of the PPP, Naeemul Haq, Shah Mehmood Qureshi, Shafqat Mahmood, Shireen Mazari of the PTI, chief ministers of Punjab, Sindh, KP and Balochistan and Interior Minister Chaudhry Nisar Ali Khan.
The army chief was assisted by DG ISI Lieutenant General Rizwan Akhtar and DG ISPR Major General Asim Saleem Bajwa.
Addressing the APC, Nawaz Sharif reminded that the time has come for a final decision to eliminate terrorism. He said he was hopeful that this bill will be presented before parliament today (Monday). “There is no room for further debate on the amendment bill in the National Assembly,” he said, urging the political leaders to finalise the draft for the amendment in the Constitution. “The nation wants to see the National Action Plan (NAP) implemented,” he said. He reiterated that the military courts would only be set up for two years.
Nawaz lauded the efforts made by the leadership of all political parties for being on the same page following the tragic attack on the Army Public School in Peshawar in which 150 people were killed. “I am happy to announce that the day after the incident, on December 17, all political parties’ leaders were in Peshawar and on the same page. In that APC, we unanimously decided that a parliamentary committee will be made to take action after the horrific incident,” said the prime minister.
He recalled that another meeting was held on December 24, which lasted 11 hours, in which the 20-point NAP was also agreed upon collectively. “I am happy that the political leadership of Pakistan is standing together to work towards eliminating terrorism,” he said.
The prime minister reminded that the draft bill had been prepared after thorough consultations with all stakeholders, and hoped that all participants will endorse it so that the country could be purged of the scourge of terrorism once and for all.
Recognising the maturity demonstrated by leaders of all political parties, the prime minister said it is a matter of satisfaction that the political leadership is taking key decisions. He said he wants to see the country a peaceful place where the citizens face no terror threat. “If we failed to take bold decisions, the nation will hold us accountable,” he said.
The prime minister observed that if a referendum is held, it will show that an overwhelming majority of Pakistanis wants that the terrorists must be taken to task by all means. The prime minister said that unity on the issue of counter-terrorism was a golden chapter in the political history of the country.
Nawaz said all the political parties had played a major role in preparation of the NAP for countering terrorism in the country, adding that everyone would want to see it coming to fruition.
Asif Zardari, while addressing the APC, said that the PPP fully supports the government in the fight for elimination of terrorism as “it is a national mission”.
Chaudhry Shujaat said that without indulging into legal and constitutional hitches, “we should think about the mothers who have been deprived of their kids permanently”.
Farooq Sattar said his party fully supports the idea of establishing military courts in the country.
Imran Khan said, “Mr Prime Minister! We fully support you in this mission.”Chaudhry Nisar also briefed the meeting. Earlier, copies of the constitutional amendment for establishing military courts in the country were distributed amongst the participants of the APC in order to get their feedback.
Participants of the meeting also offered Fateha for the Rangers personnel killed in firing by the Indian Border Security Force.The joint declaration issued after the APC said that the APC gathered to decide about the implementation of the NAP and endorsed the proposed legislative measures including amendments in the Pakistan Army Act to extend its jurisdiction for speedy trial of cases under specified acts and provide constitutional cover with a sunset clause of two years from the date of enactment. The APC reiterated commitment to degrading, dismantling and destroying all forms of terrorism and terrorist networks. It was unanimously resolved that the 20 points enunciated in the APC resolution of December 24, 2014 shall be acted upon expeditiously.