ISLAMABAD: The country’s military leadership has asked the federal government to amend the Pakistan Army Act 1952 to give wide-ranging powers to the army so that the civilians involved in terrorist activities directed against the military or military installations could be court martialled instead of being tried and convicted by regular courts or anti-terrorism courts.
Well-informed government circles have confirmed that the issue was discussed in detail during a recent meeting between the Chief of Army Staff (COAS) General Raheel Sharif and Prime Minister Nawaz Sharif which was also attended by Interior Minister Chaudhry Nisar Ali Khan and Finance Minister Ishaq Dar. The demand has been made by the military leadership while citing the inability of the existing anti-terrorism courts to hold proper and speedy trials of the al-Qaeda and Taliban-linked militants who are involved in acts of terrorism. 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 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 judges case, 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.
These sources pointed out that in some cases, terrorists convicted by the military courts on the basis of solid evidence, were given relief by the Supreme Court, thus eroding the authority of the military courts. For instance, they pointed out that the Supreme Court had overturned (on March 6, 2013) a verdict handed down by a military court of appeal which had enhanced the sentence of two civilian convicts to capital punishment for their involvement in the December 25, 2003 attempt on Musharraf’s life in Rawalpindi. The sentences of Rana Naveed and Amer Sohail had been increased by a military court of appeal to death from life term and 20-years jail on July 21, 2005. And Naik Arshad Mahmood, who was sent to the gallows on December 19 in a Faisalabad jail, had been convicted in the same case.
A senior military official (who requested anonymity) pointed out Defence Minister Khawaja Muhammad Asif’s December 19 statement wherein he stated that the military courts will be established in near future to conduct trial of terrorism-related cases. Talking to a TV channel, Khawaja Asif said on Friday, “The process of setting up military courts to try terror suspects is already underway.” The khaki official said that another proposal being discussed by the civilian and military leadership is to allow court martial of terrorists being arrested in the ongoing military operations in different parts of the country. He was of the view that the summary trial of terrorists by military courts would also help avoid allegations of extra-judicial killings, as had been the case with the 2009 operation in Swat.
However, the opponents of the amendment in the Pakistan Army Act argue that the amended law could be easily misused to hound cross sections of the society, especially the media, which is already under tremendous pressures from various quarters. When the Pakistan Army Act 1952 was amended in 2007 by the Musharraf regime, the then Attorney General Malik Qayyum had inserted some very controversial clauses which the then military junta had exploited to pressurise the media.
Under the 2007 amendment in the Army Act 1952, a mischievous sub-clause (iia) was inserted into the sub-clause (ii) which stipulated any civilian to be tried by a military court if he is found involved in committing any offence in relation to defence or security of Pakistan or Armed Forces of Pakistan, 120B (punishment of criminal conspiracy), 121 (waging or attempting to wage war or abetting waging of war against Pakistan), 121A (conspiracy to commit offences punishable by Section 121), 122 (collecting arms, etc., with intention of waging war against Pakistan), 123 (concealing with intent to facilitate design to wage war), 123A (condemnation of the creation of the state and advocacy of abolition of its sovereignty), 505 (statement which is conducive to public mischief) of the Pakistan Penal Code or attempt to commit any of the said offences.
However, official sources in Islamabad do not rule out the possibility of the government partly acceding to the military’s demand by giving provisional powers to the Army (for a specific period) through a presidential ordinance to try in the military courts civilians who are found involved in terrorist activities against the military or military installations.
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