The Bill for the Constitution (Twenty First Amendment) Act, 2015, as well as the Pakistan Army (Amendment) Act, 2015, has been tabled in the National Assembly, after numerous sessions of marathon meetings between political leaders, with almost unanimous parliamentary support. Almost, because no one really knows what the confused Khan is thinking. In any case, it does not really matter, since Khan and his parliamentarians no longer seem to be participating in the parliamentary process.
Before delving into the structure and consequences of these legislative instruments, at the very outset, it must be expressly stated that, in the shade of a constitutional democracy, the prevalent consensus and clamor for the creation of military courts is an abhorrent step. One that militates against the spirit of constitutionalism. A national consensus on the creation of military courts, as a draconian last resort, lays bare the decadence of public confidence in our civilian judicial structure, and the ability (or courage?) of the judicial organ to fearlessly convict religious terrorists, in accordance with the spirit of the Anti-Terrorism Act, 1997, and the Protection of Pakistan Act, 2014. The natural and necessary measures to fix this rot should have been an overhauling of the Anti-Terrorists Courts, and an evolution of the judicial philosophy towards conviction of religious militants. A bereaved nation, however, one that has just buried 141 sons in their school uniforms, seems to no longer care about the technicalities of constitutionalism and the due process of law. They want justice (revenge?), and they want it yesterday! In this fit of rage, who can argue the nuances of judicial structure and legal protections with a mother whose 11-years old son was identified, and then shot through the eye?
And so here we are, at the cusp of enacting the establishment of military courts, as our way of punching back.
The proposed Twenty First Constitutional Amendment, and amendments to the Army Act, cannot be viewed as two separate and disconnected legislative instruments. These Bills are part and parcel of a unified measure of: 1) trying religious terrorists in the military courts (through amendment in the Army Act), and 2) lending constitutional protection and cover to the establishment and proceedings of the military courts.
Both of these objectives, as proposed through the latest amendments, require a deeper analysis, in order to be assessed.
In its existing form, per Section 2 of the Army Act, only personnel of the Pakistan Army, or those working under the umbrella of Pakistan Army, are “subject” to the Army Act. Two exceptions are permitted, in terms of jurisdiction, to this general rule; the provisions of Army Act also extend to: 1) any person who seduces persons connected with the Army away from “his duty or allegiance to Government” (Section 2 (d) (i)), and 2) any person who has committed an offence under the Official Secrets Act, 1923 (Section 2 (d) (ii)).
This jurisdiction of the Army Act has been extended through the proposed amendments to include military trial of all “persons” who are, or claimed to be, or are “known to belong to” any terrorist group, or otherwise wage war, “using the name of religion or a sect”, against the State, Army, law enforcement agencies, or civilian personnel and property, including kidnapping (Section 2 (d) (iii)). Furthermore, “any person” who, “using the name of religion or a sect”, commits certain offences scheduled in the Protection of Pakistan Act, 2014, including attacks on schools, airports, and infrastructure, shall be tried by the military courts (Section 2 (d) (iv)).
For the protection of political parties, such as MQM, the amendment expressly states that the word “sect” is limited to religion only, “and does not include any political party registered under any law for the time being in force.” Furthermore, political control and oversight of the process has been mandated through inclusion of the requirement that prosecution for the said offences can only be initiated with “prior sanction” of the Federal Government. Finally, through inclusion of sub-sections (4), (5), and (6), the Federal Government has been given the power to “transfer” to the military courts, any of the existing cases for the said offences being tried in different courts, and these military courts need not duplicate the effort of recording evidence, to the extent that the same has been done.
Simultaneously, in order to provide constitutional cover to these military courts proceedings, two separate amendments have been proposed to the Constitution of Pakistan. First, the military courts (and the consequent proceedings) have been exempted from the Fundamental Rights protection, afforded by Article 8 of the Constitution, through inclusion of the military laws into Part I (III) of the First Schedule. Second, being mindful of the fact that the Constitution requires separation of Judiciary from the Executive (Article 175 (3)), an exception has been carved out in this constitutional principle to the extent of proceedings being done under the military laws, and the Protection of Pakistan Act, 2014.
As sum total of these amendments, military trials of suspected religious terrorists can now take place under the Army Act, outside the gates of fundamental rights, by serving Army officers, who cannot be challenged on the basis of the constitutional principle of ‘separation of powers’.
The entire exercise, for a period of at least the next two years, has been committed in the shadow of an unprecedented resolve to “permanently wipe out and eradicate terrorists from Pakistan”.
There can be no doubt about the fact that the scope and spirit of these amendments will be debated further on the floor of the Parliament, as well as the media waves. And even if these amendments were passed, they would almost certainly be challenged, with a view to determine their constitutionality through judicial review.
At the moment, however, while principally opposing the establishment of military courts, it is important to recognize that, for the first time in Pakistan’s constitutional history, religious sectarianism and attacks against religious minorities has been deemed to be “terrorism”, triable by military courts. This can serve as a major step towards curbing and prosecuting offences committed against Shias, Ahmedies, Christians and Hindus in our country. These offences which go beyond the anti-State objectives of organizations such as TTP, and envelop the prosecution of organizations such as JuD, LeJ, and even the clerics of Lal Masjid. It is about time that the State of Pakistan, and her institutions, initiates an offense against such elements.
But like all other experiments of military tribunals throughout the world, and in Pakistan’s own history, the nation, the media, the Government, and the Judiciary, will have to keep a watchful eye over who gets tried by these courts and how. The last thing that our country needs, at this critical juncture in the war against terrorism, is to slip into the abyss of political and civilian persecution at the hands of the Khaki courts.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter