Peshawar bleeds and the whole of Pakistan awakes from its deep slumber. Political parties, military brass, media, businessmen and common people strongly condemned the tragic incident of Peshawar where our beloved angles were brutally massacred. It was an attack on our heart as Chief of Army Staff Gen Raheel Sharif said. An All Parties Conference (APC) was convened and reached a national consensus. A National Action Plan (NAP) was formed and war was officially declared against terrorists.
The President of Pakistan Mamnoon Hussain signed the 21st constitutional amendment bill into an Act. More than 83 cases are ready to be sent to the military courts. Both the houses of parliament had already passed the amendment.
Main Aim
The main aim of the amendment is to provide speedy trials of terrorists through special courts headed by military officers. After the signature of the president, the 21st Amendment has become a part of the constitution and the amended Army Act has been enforced across the country. It has been decided to form 30 military courts in the country; initially 9 military courts will be established i.e. 3 in Punjab, 3 in KPK, 2 in Sindh and 1 in Baluchistan.
It is hoped that the said legislation will make possible stern action against those who take up arms against the state.
Civilian Control
There have been elements of confusion and fear about the functionalities, execution and power of the military courts due to which series of marathon meetings were planned. At last, all the political parties and main stakeholders agreed to form military courts throughout the country. Military courts could help protect judges and witnesses from intimidation and death threats.
Now, these courts will be under the civilian control of the federal government. Army officers will head these courts. GHQ and the Interior Ministry are in constant contact in this regard and it is expected that the needful has been done for setting up military courts. The Interior Ministry will select cases for these courts and draw SOPs and code of conduct. This code will be sent to the provinces and the GHQ. If the number of cases increases, that of the military courts will also do.
Activation of NACTA
Thank God, National Counter Terrorism Authority (NACTA) is again active and ready to perform its duties. The Interior Ministry has set up a special cell in Nacta to pursue terrorism cases in military courts. Army Chief Gen Raheel Sharif and Interior Minister Chaudhry Nisar have discussed mechanism for setting up military courts, appointment of judges and other steps related to eliminating the cancer of terrorism. It has been decided to start litigation against the detainees of Zarb-e-Azb.
Close Liaison
The army and the provinces have started sending cases to be forwarded to the military courts. Punjab is sending 77 and Islamabad 6 cases. GHQ will send cases of those people who are in internment centres and against whom all evidence is available. GHQ and other army institutions will fulfill all legal requirements in these cases.
National Assembly and Senate Unanimously passed the 21st Constitutional Amendment Bill 2015
The National Assembly and the Senate unanimously passed the 21st constitutional amendment bill 2015 by more than a two-thirds majority, paving the way for the constitution of military courts to conduct the speedy trials of terrorists. A total of 247 members, from both the ruling and opposition parties, in the 342-member National Assembly voted in favour of the 21st Amendment and no member in the House opposed. The bill actually required 228 votes for a two-thirds majority. In the 104-member Senate, a total of 78 members present in the House voted in favour of the amendment bill. No one opposed the legislation. Religio-political parties, the JUI-F and JI, abstained from voting for the constitutional amendment and amendment to the Pakistan Army Act, 1952.
Both the houses also cleared the Pakistan Army Act, 1952 (Amendment) Bill, 2015 extending the jurisdiction of military courts to try terrorists. The two houses approved the constitution of military courts to hear terror-related cases. The House also adopted three amendments and insertion of a new clause in the Army Act, 1952 (Amendment) Bill. The bill on becoming an act of parliament would remain in force for two years.
Preamble
It states that, (a) for the 1st paragraph, the following shall be substituted, namely:- “Whereas extraordinary situation and circumstances exist which demand special measures for speedy trial of certain offences relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan by any terrorist group, armed group, wing and militia or their members using name of religion or sect.”
Composition of Amendment
“In clause 2, the amendment adopted by the National Assembly that was moved by Law Minister states:” a) in sub-clause (1), the paragraph (a), the proposed sub-paragraphs (iii) and (iv) shall be substituted as under namely,” (iii) claiming or are known to belong to any terrorist group or organisation using the name of religion or sect, and (a) raise arms or wage war against Pakistan or attack the armed forces of Pakistan or law enforcement agencies, or attack any civil or military installations of Pakistan, or (b) abduct any person for ransom, or cause death of any person or injury, or (c) possess, store, fabricate, transport explosives, fire-arms, instruments, articles, suicide jackets, or (d) use or design vehicles for terrorist acts, or (e) provide or receive funding from any foreign or local sources for the illegal activities under the clause, or (f) act to over-awe the state or any section of the public or sect or religious minority or, (g) create terror or insecurity in Pakistan of attempt to commit any said of the acts within or outside Pakistan, shall be punished under the Act”.
“(iv) claiming or are known to belong to any terrorist group or organisation using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned in the serial nos (1), (11), (111), (v), (vi), (VII), (viii), (ix), (x), (xi), (xii), (xiii),)xiv), (xv), (xvi) and (xx) in the schedule to the Protection of Pakistan Act, 2014 (X of 2014)”.
“Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub-clause (iii) or sub-clause (iv) shall be tried under this act whatever it may have committed that offence”:
“Provided further that no person accused of an offence falling sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the federal government”.
Utility of 21st Amendment
1. Constitutional Cover
The 21st amendment to the constitution would provide constitutional cover to the trial of offences relating to terrorism by military courts while amendment to the Pakistan Army Act, 1952 would extend the jurisdiction of military courts to try terrorists.
2. Period of Existence
It shall remain in force for two years from the date of its commencement and shall cease to be part of the constitution and shall stand repealed on the expiration of the period. It would further provide that the provisions of Article 175 shall have no application to the trial of persons under any of the Pakistan Army Act 1952, the Pakistan Army Act 1953, the Pakistan Navy Act 1961 and the Protection of Pakistan Act, 2014. The Article 175 of the Constitution provides for establishment of the Supreme Court of Pakistan and high courts in the provinces.
3. First Schedule of the Constitution
The 21st Amendment to the Constitution also provides for entering the Pakistan Army Act 1952, the Pakistan Army Act 1953, the Pakistan Navy Act 1961 and the Protection of Pakistan Act, 2014 in the first schedule of the Constitution.
Pakistan Army Act 1952
Through the Pakistan Army Act 1952 (Amendment) Bill, a new sub-section (4) has been added to the Act according to which the federal government shall have the power to transfer any proceedings in respect of any person who is accused of falling under any offense in jurisdiction of the Pakistan Army Act to be amended pending in any court to a court under this Act.
It is hoped that 21st Constitutional Amendment would lead to quick dispensation of justice and help the country eliminate the terrorism. The military courts have been established to bring into count all those elements involved in terrorist activities against the state of Pakistan and its innocent people, who fall victim to their nefarious designs. Quick dispensation of justice through the military courts would help the country progress and develop, without any fear or threat.
Prospects & Constraints
At last the entire nation is united and has declared war against the terrorists. By passing the 21st amendment now, speedy justice would be provided. It is hoped that the deteriorating law and order situation would no longer be the fate of the people. Macro-Economy would be in better shape due to political stability and continuation of democracy. The elements of fear and confusion would be eradicated and the writ of the state would be in better position and rule of law would be maintained.
Non-participation of the JUF-I and other religious parties in 21st amendment would create confusion and disunity in some parts of the country, which needs to be resolved as soon as possible. Fears of Madrasas should also be settled. There must be a comprehensive national plan to bring all the Madrasas into the mainstream political and educational system of the country. So called liberal elements like NGOs, civil society, media watchdog and think-tanks must realize that we are passing through a difficult time of our national survival which needs extraordinary measures and establishing of military courts is one of the available remedy.
Suggestions
(a) Full activation of NACTA and implementation of its policies in letters and spirits. The government must ensure immediate allocation of funds for the NACTA for better intelligence sharing and coordination between the agencies. Induction of experts and researchers of terrorism/anti-terrorism, war strategy, crime, investigation should be part of the NACTA.
(b) Close liaison among all the secret and law enforcement agencies in terms of information sharing and execution.
(c) System of community policing must be reframed and institutionalize.
(d) De-politicization of police must be foremost priority of the government. Culture of police should also be changed for the betterment of the whole system of investigation and operations.
(e) Preparation of a valid domestic security policy, apparatus and its implementation. Zero-tolerance against acts of terrorism, sectarianism, separationists and enemies of the state. Matters of national survival must be above personal vested interests. Moreover, there is an urgent need to promote collective security thinking among the people at large. Activation of true colour of nationalism against terrorism is the need of the hour which may also change the previously held national narrative.
(f) Preparation of a genuine national security which could capable of tackling of all the emerging geo-political and geo-strategic maneuvering in the region and different parts of the country.
(g) Revisit our judicial system especially in lower courts. Induction of new judges having knowledge of computer, forensic sciences, economics, chemistry other than law is the need of the hour.
(h) Overhauling of Madrasas syllabus especially to change its psychological health must be taken seriously. 243 madrasas have been identified in Punjab for rigorous monitoring and investigation. The religio-political parties and organizers of the madressahs have always seen their interests being threatened whenever the government has decided to take some counterterrorism measures. They would mount pressure and eventually the government would surrender. The outcome has been that terrorism and religious extremism continue to thrive. It must be resolved now forever.
(i) National narrative about political Islam needs to be redefined. It has nothing do with fanaticism and of course terrorism.
(j) TTP offshoots must be tackled with irony hands. The government of Punjab must take all possible measures to cope this dangerous so called holy-alliance.
(k) Military courts must proceed in camera session and must decide terrorism cases in seven days.
(l) Institution of separate Special Courts in Federally Administered Tribal Areas (FATA) under Frontier Crimes Regulations (FCR) or other available legal instruments for disposal of terrorism-related cases within seven days.
(m) Enhancing of capacity building and the government must provide immediate funds to the security forces, enabling their capacity building for carrying out operations across the country.
(n) Repatriation of Afghan migrants should be implemented as soon as possible. The government has already agreed to the United Nations to host the Afghan migrants till year 2015. Close contacts between Pakistan’s government and army and Afghanistan for winning the war against terrorism.
(o) 72 banned groups must be dealt with irony hands. Comprehensive action must be planned instead of selective approach.
(p) Systematic planning must also be framed to eradicate the root causes of terrorism in the society. Economic terrorism, denial of basic necessities of life and denial of social justice ought to be removed in the country. Vast social-nets, education, health and housing should be mantra of every government.
(q) Responsible attitude of mass-media in order to achieve the desired goals of national narrative and socio-economic prosperity.
