The proposed Twenty First Constitutional Amendment, and amendments to the Army Act, cannot be viewed as two separate and disconnected legislative instruments. These Bills are part and parcel of a unified measure of: 1) trying religious terrorists in the military courts (through amendment in the Army Act), and 2) lending constitutional protection and cover to the establishment and proceedings of the military courts.
Both of these objectives, as proposed through the latest amendments, require a deeper analysis, in order to be assessed.
In its existing form, per Section 2 of the Army Act, only personnel of the Pakistan Army, or those working under the umbrella of Pakistan Army, are “subject” to the Army Act. Two exceptions are permitted, in terms of jurisdiction, to this general rule; the provisions of Army Act also extend to: 1) any person who seduces persons connected with the Army away from “his duty or allegiance to Government” (Section 2 (d) (i)), and 2) any person who has committed an offence under the Official Secrets Act, 1923 (Section 2 (d) (ii)).
This jurisdiction of the Army Act has been extended through the proposed amendments to include military trial of all “persons” who are, or claimed to be, or are “known to belong to” any terrorist group, or otherwise wage war, “using the name of religion or a sect”, against the State, Army, law enforcement agencies, or civilian personnel and property, including kidnapping (Section 2 (d) (iii)). Furthermore, “any person” who, “using the name of religion or a sect”, commits certain offences scheduled in the Protection of Pakistan Act, 2014, including attacks on schools, airports, and infrastructure, shall be tried by the military courts (Section 2 (d) (iv)).
For the protection of political parties, such as MQM [Muttahida Quami Movement], the amendment expressly states that the word “sect” is limited to religion only, “and does not include any political party registered under any law for the time being in force.” Furthermore, political control and oversight of the process has been mandated through inclusion of the requirement that prosecution for the said offences can only be initiated with “prior sanction” of the Federal Government. Finally, through inclusion of sub-sections (4), (5), and (6), the Federal Government has been given the power to “transfer” to the military courts, any of the existing cases for the said offences being tried in different courts, and these military courts need not duplicate the effort of recording evidence, to the extent that the same has been done.
Simultaneously, in order to provide constitutional cover to these military courts proceedings, two separate amendments have been proposed to the Constitution of Pakistan. First, the military courts (and the consequent proceedings) have been exempted from the Fundamental Rights protection, afforded by Article 8 of the Constitution, through inclusion of the military laws into Part I (III) of the First Schedule. Second, being mindful of the fact that the Constitution requires separation of Judiciary from the Executive (Article 175 (3)), an exception has been carved out in this constitutional principle to the extent of proceedings being done under the military laws, and the Protection of Pakistan Act, 2014.
As sum total of these amendments, military trials of suspected religious terrorists can now take place under the Army Act, outside the gates of fundamental rights, by serving Army officers, who cannot be challenged on the basis of the constitutional principle of ‘separation of powers’.