ISLAMABAD: The government has quietly allowed the military courts to try thousands of suspects detained at different internment centres by passing an ordinance in February this year.

After the December 16, 2014, attack on the Army Public School Peshawar, the government had introduced the 21st constitutional amendment to allow for military courts.

On January 6, parliament passed the amendment that enabled military courts to try civilians facing various charges related to terrorism, militancy, sectarian violence, waging war against the state, armed forces and law enforcement agencies.

Amendment passed as ordinance when parliament wasn’t in session; minister says matter will be tabled in NA

However, this constitutional amendment and the subsequent amendments to the Pakistan Army Act (PAA) did not allow for the trial of those detained in the internment centres.

According to retired Lt-Col Tahir Mehmood, of the army’s legal directorate, the initial amendment to the PAA was silent about the internment centres detainees.

“The amendments in the PAA made in January this year empowered jurisdiction of the military courts to those suspects who were not subject to the army act earlier,” he explained, adding that the 21st amendment gave constitutional cover to the amendments made in the PAA.

A former officer of the army’s judge advocate general (JAG) branch, the military’s legal directorate, told Dawn that there were over 6,000 suspects detained at different internment centres and that these suspects were captured in military operations since 2009.

During the hearings of some missing persons’ cases in courts, the military did admit to holding some of them in custody; it said these men were captured in the operational areas and then detained in the internment centres.

The detention of these suspects was of concern to the military.

As a result, while the petitions against the 21 amendment were pending in the apex court, the ministry of law and justice on February 25 promulgated an ordinance for further extending the ambit of the PAA to the persons under the custody of the armed forces. This has now allowed the military courts to hold the trial of the men that had been detailed earlier, before the 21 amendment was passed.

The ordinance amended Section 2 (which defines jurisdiction of the PAA) to say: “Any person arrested, detained or held in custody by the armed forces, civil armed forces or law enforcement agencies and kept under arrest, custody or detention before the coming into force of the Pakistan Army (Amendment) Act 2015 (Act II of 2015) shall be deemed to have been arrested or detained pursuant to the provisions of this Act as amended by the PAA.”

Retied Brigadier Wasaf Khan Niazi, a former JAG, told Dawn that the government had extended the jurisdiction of the military courts.

When asked whether the government could apply the law to the detained suspects retrospectively, Brigadier Naizi said this was a procedural law not a penal law. “Therefore, it could be applied retrospectively.”

Penal law, or criminal law, deals with offences and their penalties such as murder or child abuse; so for instance when a new offence is brought under the ambit of law such as child abuse or cyber crime, it cannot apply retrospectively, he explained.

“However, the Juvenile Justice System Ordinance (JJSO) was a procedural law promulgated in 2000, which said that those who were juveniles would not be tried in ordinary courts and would not be awarded capital punishments. Those juveniles, who were tried and convicted before this law, could also benefit from this as it was a procedural law.”

The former JAG, however, said it was not necessary that all those who were detained at the internment centres would be tried by the military courts.

“Only those subject to the PAA would be tried by the military courts.”

Earlier, in 2011, the then government of Pakistan People’s Party (PPP) had issued the ‘Action in Aid of Civil Power Regulations 2011 for Fata (CPRF)’ that legitimised the detention of the suspects.

The government of Pakistan Muslim League-Nawaz (PML-N) also issued the Protection of Pakistan Act (PoPA) which created a new offence of waging war against the armed forces and state.

However, the trial of the detained suspects was never addressed in the earlier amendments in the PAA (which followed once the 21 amendment was passed) in January this year. In the same month, the jurisdiction of PAA has been extended to the Gilgit-Baltistan through a presidential order. Another amendment to provide for the protection of witnesses, presiding officers and prosecutors and defending officers of the military courts was also brought into the Parliament and it was approved by the Senate on August 11.

This third amendment, which was made quietly, now allows the trial of those held at the internment centre.

Federal Minister for Information and Broadcasting Pervaiz Rashid said the ordinance was issued at a time when the National Assembly was not in session. He said the matter was also pending before the Supreme Court and that was why the government did not introduce it in the shape of a bill in the parliament.

“Now the Supreme Court has dismissed petitions against the 21st constitutional amendment and the government will table this matter before the parliament,” he said, adding “the ordinance would be tabled in the shape of a bill before the parliament; if it is not, it would lapse accordingly.”

Published in Dawn, August 24th, 2015

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