New martial powers:

• Individuals illegally crossing national boundaries can now be tried by military courts
  
• Federal government can transfer any case, pending in any trial court, to military courts
• Those convicted by military courts will have no right of appeal before civilian courts
  
• New legislation gives a judicial mandate to an executive functionary

ISLAMABAD: The amendment in the Pakistan Army Act (PAA) 1952 has added a fourth category of civilians that can now be tried by military courts – for the next two years.

This amendment in section 2 (d) of the PAA has now empowered military courts to try civilians facing charges of terrorism or abetting terrorist activity.

New to the military courts

These new offences, which now fall under the jurisdiction of military courts thanks to the amendments made to the PAA by parliament on Tuesday, include the following: those claiming or known to belong to any terrorist group or organisation using the name of religion or a sect; those who raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies; kidnapping for ransom; possession or storing of explosives, firearms, suicide jackets; using or designing vehicles for terrorists acts; providing or receiving funding from any foreign or local sources for terrorism ; “overawing” the state or any section of public or sect or religious minority and creating terror or insecurity in Pakistan or outside.

Earlier, the civilians could only face court martial if they “seduce, or attempt to seduce” persons subject to PAA or if they were civilians who were working in army installations or employed at temporary military set ups.

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Another amendment to subsection (iv) has empowered military authorities to take action against those who “belong to any terrorist group or organisation using the name of religion or sect” and waging “war against Pakistan” if they commit an offence that has been mentioned in the Protection of Pakistan Act (PPA).

These offences under the PPA, which will now make their way to the military courts, will include: crimes against religious, ethnic and political groups or minorities; use of arson, firebombs, suicide bombs, and other materials that can injure or kill people or destroy property; bomb or arson attacks on public premises, government premises, sites of worship, historical places; killing kidnapping, extortion or attack on members of parliament, judiciary, executive, media; the killing, kidnapping of army and law enforcement officers and employees, of foreign nationals, of health personnel and of aid workers; attacks on communication lines, grid stations, energy facilities (such as dams and distribution systems), airports, educational institutions, police stations and mass transport system.

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Illegally crossing national boundaries is also an offence under the PPA and this too can now be tried in a military court.

Govt’s new powers

The amendment bill, however, made it clear that the persons facing these offences can only be prosecuted with the prior sanction of the federal government.

However, this is not the only power that the federal government enjoys under the latest amendment to the PPA.

More serious is the fact that the amendment gives the federal government the power to transfer any pending cases in any trial courts to the military courts, allowing the latter to continue with the trial.

It does not seem as if the date of the offence or the stage at which the trial is will matter.

According to former Judge Advocate General, retired Brigadier Wasif Khan Niazi, the amendment also makes it clear that the witnesses who have already testified will not be required to testify again in the military court. The military court will give its verdict on the basis of the previously recorded statement.

Another amendment in section 60 of PAA empowers the military courts to award punishment for those offences which are not part of the Army Act but which have been added to it under the latest amendment. For example, the military courts can now award punishment ranging from death to imprisonment or imposing fines to those charged and convicted for the offences mentioned in the PPA.

Is there a right of appeal?

The bill, however, is silent about section 133 of the PAA, which deals with the right of appeal against the judgment of military court in the superior courts. Under the PAA, the civilian courts do not have the right to hear appeals against judgments awarded by the military courts.

According to Brig Niazi, the fact that the latest amendment to the PAA does not mention this right to appeal means that the convict of the military courts will continue to have no right of appeal in the civilian courts; after the military appellate court upholds the order of field general court martial, the order would be final and would not be challengeable in civilian courts such as the Supreme Court.

Constitutional amendment

On Tuesday, the parliament also passed a constitutional amendment which was aimed at ensuring that the amendments to the PAA cannot be struck down by the Supreme Court as unconstitutional.

One way in which the constitutional amendment has tried to address this concern is by amending Article 175 (3) of the constitution which states that “The judiciary shall be separated progressively from the executive”.

Under the latest 21 amendment, this article will not apply to the trials of terrorists under The Pakistan Army Act 1952, The Pakistan Air Force Act 1953, The Pakistan Navy Ordinance 1961 and The Protection of Pakistan Act.

According to constitutional expert Dr Tariq Hassan, the legislation p[assed on Tuesday has given a judicial mandate to an executive functionary - the personnel of armed forces - who would conduct the trial of terrorism suspects. He explained that Article 175 (3) was inserted in the constitution to separate the judiciary from the executive but after Tuesday, military men would now enjoy judicial authority.

Published in Dawn, January 7th, 2015

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