lengthy article advising when Pakistan's military courts legislative package will be passed by the two houses of Parliament. The most interesting part is this description of the legislative strategy:
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.In other words, these will be normal military courts trying civilians but the charging decisions will be made by civilian authorities. Will this "legal way out" survive review in the Supreme Court of Pakistan? Should it?