The Scope of Military Courts
The following are the words, whereby a description of crimes rather than a definition of terrorism alone has been provided, have to be tried in military courts exclusively, being established by virtue of 21st amendment in the constitution, which was passed recently by the parliament. A sunset clause has also been provided therein, which causes the amendments to expire on January 7, 2017.
“WHEREAS extraordinary situation and circumstances exist which demand special measures for speedy trial of certain offences relative to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan by the terrorist groups using the name of religion or a sect and also by the members of armed groups, wings and militias;
AND WHEREAS there exists grave and unprecedented threat to the integrity of Pakistan and objectives set out in the Preamble to the Constitution by the framers of the Constitution, from the terrorist groups by raising of arms and insurgency using the name of religion or a sect, or from the foreign and locally funded anti-state elements;
AND WHEREAS it is expedient that the said terrorists groups including any such terrorists fighting while using the name of religion or a sect, captured or to be captured in combat with the Armed Forces or otherwise are tried by the courts established under the Acts mentioned hereinafter in section 2;
AND WHEREAS the people of Pakistan have expressed their firm resolve through their chosen representatives in the all parties conferences held in aftermath of the sad and terrible terrorist attack on the Army Public School at Peshawar on 16 December 2014 to permanently wipe out and eradicate terrorists from Pakistan, it is expedient to provide constitutional protection to the necessary measures taken hereunder in the interest of security and integrity of Pakistan;
An extraordinary situation and circumstances exist which demand special measures for speedy trial of offences relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan. There exists grave and unprecedented threat to the territorial integrity of Pakistan by miscreants, terrorists and foreign funded elements. Since there is an extraordinary situation as stated above it is expedient that an appropriate amendment is made in the Constitution. The Bill is designed to achieve the aforesaid objects”.
The entire purpose of the amendment is to secure a legal instrument for establishing military courts for trial of the aforesaid crimes as well as securing constitutional protection therefor. I am interested only to settle down the hue and cry being raised by religio-political pundits, who neither understand the religion, the politics and nor the laws.
Though their outcry is simply meant for public consumption as to make a show, how democratic are they!
In fact definition of terrorism has already been provided in section 6 of the Anti-Terrorism Act, 1997, which is as under;
6. Terrorism. — (1) In this Act, “terrorism” means the use or threat of action where:
(a) the action falls within the meaning of sub-section (2), and
(b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or
(c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause.
(2) An “action” shall fall within the meaning of sub-section (1), if it:
(a) involves the doing of anything that causes death;
(b) involves grievous violence against a person or grievous bodily injury or harm to a person;
(c) involves grievous damage to property;
(d) involves the doing of anything that is likely to cause death or endangers a person’s life;
(e) involves kidnapping for ransom, hostage-taking or hijacking;
(f) incites hatred and contempt on religious, sectarian of ethnic basis to stir up violence or cause internal disturbance;
(g) involves stoning, brick-bating or any other forms of mischief to spread panic;
(h) involves firing on religious congregations, mosques, imambargahs, churches, temples and all other places or worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship;
(i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic, life;
(j) involves the burning of vehicles or any other serious form of arson;
(k) involves extortion of money (“bhatta”) or property;
(l) is designed to seriously interfere with or seriously disrupt a communications system or public utility service;
(m) involved serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; or
(n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.
(3) The use or threat of use of any action falling within sub-section (2), which involves the use of fire-arms, explosives or any other weapon, is terrorism, whether or not sub-section 1(c) is satisfied.
(4) In this section “action” includes an act or a series of acts.
(5) In this Act, terrorism, includes any act done for the benefit of a proscribed organization.
(6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism.
Thus reading both in collective perspective; the definition of terrorism having been provided in the Anti-Terrorism Act 1997 and the crimes having been prescribed in the 21st amendment one would reach to the correct conclusion that the military courts being established would be very much competent to try the terrorists of all sorts, whether they are using religion, sect, ethnicity or nationality.
The uproar of religio-political pundits to the effect that their “brands” alone have been declared as bandits, in accordance with the prescription of terrorist crimes having been provided in the 21st amendment, is absolute absurdity.
This is why, according to Inter-Services Public Relations (ISPR), initially nine military courts are being established across the country; three courts each will be established in Khyber Pakhtunkhwa and Punjab, two in Sindh and one in Balochistan. The courts will start functioning soon, was also added.
Aftab Alam Advocate (High Court),
Former President District Bar Association Swat