Controversial Pakistan military court proposal examined

Amir Mir

Amir Mir, writing for The International News, has provided a detailed report on the Pakistan Army's proposal to allow it to try civilians by court-martial. The background is complicated, as he explains:

Under the proposed amendment in the Pakistan Army Act, which is only possible by amending the 1973 Constitution, the country’s military leadership wants to try civilians on charges ranging from treason and sedition to attacks on Army personnel or military installations.

In fact, there is a provision in the current Pakistan Army Act to hold court martial of civilians, but only when at least one of the accused belongs to the armed forces. In recent years, several militants were tried and sentenced by different field court martials, mainly because some members of the armed forces were also found involved in these cases. Most of the civilians who were tried in these cases by different field court martials were accused of involvement in two abortive assassination attempts on Pervez Musharraf in Rawalpindi in December 2003. However, the agencies have pointed out a dangerous trend in recent years of growing coordination between militants and renegade elements in the armed forces to conduct terrorist activities, mostly directed against military personnel or military installations.

Therefore, the military authorities have asked the government to consider amending on a priority basis Section 2(1)(d) of the Pakistan Army Act, 1952, by adding more offences of the Pakistan Penal Code (PPC) and allowing the military courts to try and convict the civilians. But according to informed sources in the Law Ministry, the government side is reluctant to amend the Pakistan Army Act 1952 to give sweeping powers to the military to try and convict civilians. In fact, the sources pointed out, the PML-N leadership had opposed the Musharraf regime’s November 2007 decision to amend the Pakistan Army Act 1952 (through a presidential ordinance) to give wide-ranging powers to the army to court-martial civilians. The amendment was introduced three months after the July 2007 Lal Masjid [Red Mosque] military operation in Islamabad.

Rejecting the Musharraf regime’s 2007 move, the PML-N and the PPP leadership had maintained that granting military courts jurisdiction to try civilians accused of offences, from murder to libel, indicated the Musharraf government’s lack of confidence in judges. As a result of the Musharraf regime’s decision to amend the Army Act 1952, the Supreme Court was barred from taking cognisance of the cases of disappearances that the then Chief Justice Iftikhar Chaudhry was inquiring into at that time before being deposed. The suo moto cognisance taken by Chief Justice Iftikhar Chaudhry was a big embarrassment to the Musharraf regime, especially in the cases of missing persons. After the amendment was introduced, the military authorities were able to avoid the habeas corpus provisions by simply notifying the arrests under the amended Pakistan Army Act 1952.

The amendment introduced by the Musharraf regime enhanced the powers of the khakis to include all the Penal Code crimes that were interpreted as being against the “security of Pakistan” -- a term that is so loose that it can be taken to mean whatever the regime wants it to mean. In the wake of the said amendment, almost anyone could be picked up and accused of having committed treason or sedition or terrorism and sent before a military court judge. Indeed, Musharraf went an extra mile to beef up the Army Act by inserting various clauses in section 2(1)(d), including some related to the “ideology of Pakistan”, etc., whereby the military was empowered to detain and summarily convict any civilian on any pretext even in non-martial law times. And last but not least, the Musharraf era’s amendment provided that it would take effect from January 2003, although it was introduced in November 2007.

After the PPP government restored 100-plus deposed judges of the superior judiciary in March 2009 in the wake of Nawaz Sharif’s long march, the Supreme Court of Pakistan, while deciding the famous [Provisional Constitution Order (PCO)] judges case [Sindh High Court Bar Ass'n v. Federation of Pakistan, Constitution Petition No. 9 of 2009 (Pak. July 31, 2009)], struck down most of the legislation which was made after November 3, 2007, including amendments introduced in the Army Act 1952. Therefore, the military once again wants to amend the Army Act on the same lines, the only difference this time being that the law and order situation has worsened further since 2007. However, well-informed sources in security establishment have claimed that the federal government has responded positively to the proposed amendment in the Army Act 1952, having realised the fact that the terrorists are targeting civilians and the khakis alike, as well as their families.

It is rare to find such a cogent statement of the political and legal background of proposed legislation. The entire article merits close study -- and the Army's proposal bears watching.