Parliament approves military courts to try terrorists

ISLAMABAD: The National Assembly and the Senate on Tuesday unanimously passed the 21st Constitutional Amendment Bill 2015 by more than a two-thirds majority, paving the way for the constitution of military courts to conduct the speedy trials of terrorists.
Both the houses also cleared the Pakistan Army Act, 1952 (Amendment) Bill, 2015 extending the jurisdiction of military courts to try terrorists.The two houses approved the constitution of military courts to hear terror-related cases after a barbarous Taliban attack on the Army Public School (APS) in Peshawar killed 134 schoolchildren last month, throwing the nation into a tailspin.
Minister for Law, Justice and Human Rights Senator Pervaiz Rashid moved the two bills separately in the presence of Prime Minister Mohammad Nawaz Sharif and other lawmakers.A total of 247 members, from both the ruling and opposition parties, in the 342-member National Assembly voted in favour of the 21st Amendment and no member in the House opposed. The bill actually required 228 votes for a two-thirds majority.
In the 104-member Senate, a total of 78 members present in the House voted in favour of the amendment bill. No one opposed the legislation.Both the bills will now be sent to President Mamnoon Hussain for assent for the enactment of the law and the constitutional amendment.
Religio-political parties, the JUI-F and JI, abstained from voting for the constitutional amendment and amendment to the Pakistan Army Act, 1952 while the PTI, which favoured the constitution of military courts in the All Parties Conference (APC), continues to stay away from the National Assembly.
The JUI-F leaders complained that they had not been taken into confidence on the final draft of two bills, while the JI parliamentarians wanted the deletion of the words ‘religion or sect’ from the legislation.
The amended bills coming from the National Assembly were passed by the Senate in the evening.The JI members had also submitted one amendment each to two bills in the National Assembly Secretariat seeking the deletion of the words “religion” and “sect”. These words are mentioned in clause 2 of each of the bills. However, the speaker dropped both amendments, as the JI parliamentarians were not present in the House.
As a major amendment to Clause 1 of the Army Act, 1952 (Amendment) Bill, the Act from the date of commencement would remain in force for a period of two years.
In the bill which was introduced in the house on Saturday, it was mentioned that the Act could be extended beyond two years through resolutions from the two houses of parliament.
As a first amendment to the 21st Amendment Bill in Clause 2, the explanation ‘In the proviso, the expression ‘sect’ means a sect of religion and does not include any political party regulated under the law’ has been added.
According to another amendment, a substitution has been made. The substitution says ‘Whereas extraordinary situation and circumstances exist which demand special measures for speedy trial of certain offences relating to terrorism, waging war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan by any terrorist group, armed group, wing and militia or their members using the name of religion’.
The House also adopted three amendments and insertion of a new clause in the Army Act, 1952 (Amendment) Bill. The bill on becoming an act of parliament would remain in force for two years.
As per insertion, the act would have an overriding effect on any other law. According to a new insertion in the bill, the provisions of the act shall have effect notwithstanding anything contained in any other law for the time being in force.
In case there is any conflict between the provisions of this act and any other law for the time being in force, the provisions of this act shall prevail to the extent of inconsistency.
In clause 2, the amendment adopted by the National Assembly that was moved by Law Minister Senator Pervez Rashid states: “a) in sub-clause (1), the paragraph (a), the proposed sub-paragraphs (iii) and (iv) shall be substituted as under namely,” (iii) claiming or are known to belong to any terrorist group or organisation using the name of religion or sect, and (a) raise arms or wage war against Pakistan or attack the armed forces of Pakistan or law enforcement agencies, or attack any civil or military installations of Pakistan, or (b) abduct any person for ransom, or cause death of any person or injury, or (c) possess, store, fabricate, transport explosives, fire-arms, instruments, articles, suicide jackets, or (d) use or design vehicles for terrorist acts, or (e)provide or receive funding from any foreign or local sources for the illegal activities under the clause, or (f)act to over-awe the state or any section of the public or sect or religious minority or, (g) create terror or insecurity in Pakistan of attempt to commit any said of the acts within or outside Pakistan, shall be punished under the Act.
(iv) claiming or are known to belong to any terrorist group or organisation using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned in the serial nos (1), (11), (111), (v), (vi), (VII), (viii), (ix), (x), (xi), (xii), (xiii),)xiv), (xv), (xvi) and (xx) in the schedule to the Protection of Pakistan Act, 2014 (X of 2014).
Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub-clause (iii) or sub-clause (iv) shall be tried under this act whatever it may have committed that offence:
Provided further that no person accused of an offence falling sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the federal government.
Explanation: In this clause, the expression ‘sect’ means a sect of religion and does not include any political party regulated under the law.
In the preamble, the amendment adopted states that, (a) for the 1st paragraph, the following shall be substituted, namely:- “Whereas extraordinary situation and circumstances exist which demand special measures for speedy trial of certain offences relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan by any terrorist group, armed group, wing and militia or their members using name of religion or sect;”
b) for the second paragraph, the following shall be substituted, namely:-
“And whereas there exists grave and unprecedented threat to the integrity of Pakistan by raising of arms and insurrection using the name of religion or a sect by groups of foreign and locally funded elements:’
c) In the third paragraph, the words, “by the court” shall be omitted.
d) for the fourth paragraph, the following shall be substituted, namely;- “And whereas Article 245 of the Constitution of the Islamic Republic of Pakistan enjoins upon the armed forces o act in the consonance with the provisions of the said article.”
In the clause 1 of the Army (Amendment) bill, 2015, the National Assembly adopted the amendment through which the provision of this act shall remain in force for a period of two years from the date of its commencement.
The 21st Amendment to the Constitution would provide constitutional cover to the trial of offences relating to terrorism by military courts while amendment to the Pakistan Army Act, 1952 would extend the jurisdiction of military courts to try terrorists.
The Constitution (21st Amendment) Act, 2015 shall remain in force for two years from the date of its commencement and shall cease to be part of the Constitution and shall stand repealed on the expiration of the period.
The 21st Amendment to the Constitution would provide that the provisions of Article 175 shall have no application to the trial of persons under any of the Pakistan Army Act 1952, the Pakistan Army Act 1953, the Pakistan Navy Act 1961 and the Protection of Pakistan Act, 2014.
The Article 175 of the Constitution provides for establishment of the Supreme Court of Pakistan and high courts in the provinces.
The 21st Amendment to the Constitution also provides for entering the Pakistan Army Act 1952, the Pakistan Army Act 1953, the Pakistan Navy Act 1961 and the Protection of Pakistan Act, 2014 in the first schedule of the Constitution.
The first schedule of the Constitution contains laws which are exempted from operation of Article 8 (1) and (2) of the Constitution. These articles are part of Chapter 1 of the Constitution relating to the fundamental rights.
Article 8 (1) of the Constitution says 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.
Article 8 (2) says 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.
The statement of the objects and reasons says an extraordinary situation and circumstances exist which demand special measures for speedy trial of offences relating to terrorism, waging war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan.
Through the Pakistan Army Act 1952 (Amendment) Bill, a new sub-section (4) has been added to the Act according to which the federal government shall have the power to transfer any proceedings in respect of any person who is accused of falling under any offense in jurisdiction of the Pakistan Army Act to be amended pending in any court to a court under this Act.