Pak: 'Army Act amendments violate Constitution'

The promulgation of the amendments to the Army Act in Pakistan, are alarming. These amendments give wide powers to military courts. Civilians can be tried for a number of offences including for expressing views that citizens of Pakistan comprise of more than one nationality, by the military courts.

Antiquated laws that had lost their teeth through judicial reviews are now being resurrected and made punishable to be tried by the military. Trials will not be open to public hearings; lawyers will only be allowed to represent the accused in the capacity of a friend.

Investigation will be carried out by military personal and ordinary rules of evidence will not apply. 

In the past, offences under the Prevention of Anti-National Activities Act were tried by a specially constituted tribunal headed by a judge of the high court. The presiding judge was appointed with the consultation of the chief justice of that court.

The Anti-National Activities Act as well as several other offences now to be tried by military courts has remained controversial. Lawyers and leaders of civil society vehemently denounced them for being oppressive.

The government had powers to detain any person under the Security of Pakistan Act, 1952, but a review board consisting of judges of the Supreme and high courts examined the grounds of such detentions.

The amendments made under the Army Act are blatantly violating all norms of human rights and the Constitution of Pakistan.

In order to settle scores with lawyers, human rights activists and defiant journalists the law is given effect from January 2003. This also allows the government to legitimise the illegal acts of disappearances carried out by the intelligence agencies with impunity.

It may be recalled that the Supreme Court of Pakistan was hearing a number of petitions concerning several individuals who had been picked up by state agents, tortured and kept in clandestine detention centres.

The Human Rights Commission of Pakistan had also filed a fundamental rights petition on behalf of 198 persons. On the intervention of the Supreme Court, 99 were released.

A number of those who were released gave statements in the Supreme Court disclosing how they were tortured and also identified their perpetrators. This government was extremely unhappy with judges of the superior courts for taking the law enforcement to task for violating the rights of the disappeared.

General Musharaf in a public statement defended the government. He assured the people that none of those who had gone missing were picked up by the government, but had voluntarily gone for jihad.

This was yet another cruel distortion by the general. Perhaps, a handful of those who disappeared may have gone jihading, but not one person on the commission's list was even accused of Al Qaida style terrorism. A large majority were young secular-minded Baloch nationalists. The statements of a number of them, who reappeared, including a few journalists, only exposed the horror of the excesses of the security forces. 

The new amendments fully support the assertion that General Musharaf has not declared emergency, but imposed martial law and that it has pointedly targeted a vocal civil society.

Zia's draconian laws have also been activated and offences under them will be tried under the Army Act.

In 1984 Zia made amendments in the penal code making expressions of 'disaffection' against the government and those 'prejudicial' to Pakistan punishable. Those accused of expressions or acts that are 'prejudicial' or offensive towards the government will now be tried by the military. 

The attorney general justified these amendments on the grounds that these were essential for combating terrorism and that similar laws also exist in the United Kingdom and the USA.

First, two wrongs will never make right. Secondly, the UK and the USA have an independent judiciary that has also struck down provisions of the Patriot Act.

The military courts in the UK or the USA do not try their own citizens. Moreover, journalists, lawyers and activists in the UK or the US have not been charged for terrorism or treason.

In Pakistan, police has filed reports accusing several lawyers and activists of terrorism. There are at least three FIRs against me under the Terrorist Act. Judges of superior courts are not under house arrest in either the UK or the US. 

Granting military courts jurisdiction to try offences from murder to libel is an expression of the government's own lack of confidence in its selected PCO judges.

The onslaught on the courts was not because they were obstructing the trial of terrorists, but because they dared to give relief in some cases.

A dictator seeks absolute obedience and fears his own shadow too. As such no amount of appeasement or repression will put their minds at rest.

There is little doubt that the Musharaf regime is no mood to change course. They want absolute power. They will tolerate no dissent and will continue to use the terrorist card to keep the international community at bay.

How long will the bluff and a state of self-denial work?

Courtesy: SAP-PK

Asma Jahangir is a Pakistani lawyer and human rights activist who is currently in detention in her house.