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January 6, 2015

Amendments to make superior courts’ judgments ineffective


January 6, 2015

ISLAMABAD: The proposed constitutional amendment to give protection to the recommended changes in the Pakistan Army Act (PAA) that will enlarge the military courts scope to civilian terrorists will render judgements of the superior courts on this specific issue irrelevant.
“When the Supreme Court had declared the 1999 military courts void, it had found the particular law that had established these forums inconsistent with and in violation of the Constitution,” a legal expert told The News. He said that similarly the present amendments to the three armed forces acts, if challenged in any superior court, will be reviewed to see whether or not they are consistent with the Constitution.
An official believed that before framing the amendments to the Constitution and the three acts, the government’s legal team thoroughly reviewed the case law on the subject.He said that it weighed on the mind of the team that the amendments to the armed forces acts would be struck down if they were not provided constitutional protection. This, he said, necessitated the constitutional amendment.
Therefore, it was specifically written in the amendment that it is expedient to provide for constitutional protection to the necessary measures taken in the interest of security and integrity of Pakistan as the people of Pakistan have expressed their firm resolve through their chosen representatives in the All Parties Conferences held in the aftermath of the sad and terrible attack on the Army Public School on December 16, 2014, to permanently wipe out and eradicate terrorists from Pakistan.
Article 175 of the Constitution provides for establishment and jurisdiction of courts, which are recognized by the basic document. It says there shall be a Supreme Court of Pakistan, a high court for each province and a high court for the Islamabad Capital Territory and such other courts as may be established by law. No court will have any jurisdiction save as is or may be conferred on it by

the Constitution or by or under any law.
The constitutional amendment seeks non-application of this article to the three armed forces acts and the Protection of Pakistan Act (PPA) by placing them in the First Schedule of the Constitution.
The laws listed in the First Schedule are exempted from the operation of article 8(1)(2), which covers fundamental rights and say laws inconsistent with or in derogation of fundamental rights would be void.
Clauses 1 and 2 of Article 8 say any law or any custom or usage having the force of law, in so far as it is inconsistent with the rights shall, to the extent of such inconsistency, be void. The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
To allay the widespread valid apprehensions of political parties that the enhancement of the powers of the courts martial to try civilians will also hit them, given the track record of such forums, it was provided in the amendment to the PAA that the expression of ‘sect’ means a sect of religion and does not include any political party registered under any law for the time being in force.
It means that any outfit that was outlawed for any reason would be exempted from the application of this amendment if it, after assuming some other name, has got itself registered as a political party with the Election Commission of Pakistan (ECP) and operates following the requisite laws.
It is also provided in the amendment to the PAA that a terrorist will be tried under it regardless of the place where he committed the offence.
It says any person who is alleged to have abetted, aided or conspired in the commission of any offence listed in the amendment shall be tried under it ‘wherever’ he may have committed that offence.
In addition, 16 offences listed in the PPA have also been added to the PAA for trial by the military courts.
These include: crimes against ethnic, religious and political groups or minorities, including offences based on discrimination, hatred, creed and race; use of arson, fire-bombs, biological weapons, chemical weapons, nuclear arms, plastic explosives and other materials capable of exploding or creating bombs employed to kill or cause hurt to persons or destroy property; use of arsons and bombs public places, government premises, sites of worship, historical places, business concerns or other places, and risking or causing death or hurt to any person therein; killing, kidnapping, extortion, assault, or attack on officers and employees of Pakistan including armed forces and law enforcement agencies; killing, kidnapping, extortion, assault or attack on foreign officials, official guests, tourists, foreign visitors or internationally protected persons, social or welfare workers, including health personnel, aid workers and volunteers; destruction or attack on communication and interaction lines, devices, grids of stations or systems etc.; destruction or attack on energy facilities, including dams, power generating distributing systems, including systems, lines and poles, on aircrafts and airports, flight crew, with any weapon, endangering human life by means of weapons or aircrafts, on gas and oil pipelines, and liquid or natural gas facilities and other means of their transport, including tankers etc.

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