May 24, 2023
By Maryam Missal
Interior Minister Rana Sanaullah has dismissed the need for an amendment in the Constitution and Army Act in order to try civilians in military courts while talking to senior journalist Munizae Jahangir on Aaj News’s Spotlight. On the contrary, Col (Retd) Inam-ur-Rahim confirms the need for an amendment in the Army Act to conduct trials of civilians in military courts.
In relation to the events of May 9, the army proposed the trial of those involved in the vandalism and destruction of military installations under the Pakistan Army Act 1952 and the Official Secrets Act 1923. This proposal had received a green light from the National Security Committee (NSC) of Pakistan and then later the Federal Cabinet.
On Monday, the National Assembly passed a resolution endorsing the move.
The decision has resulted in much debate regarding its legal jurisdiction.
According to Sanaullah, it is fully legal and permissible to try civilians in military courts. While talking to senior journalist Munizae Jahangir, he said that an amendment will be needed if the vandals are being tried for a civilian offence.
“For example, in the events of May 9, many offences can be counted as civilian offences such as arson and vandalism of civil properties and damage to motorway toll plazas. If these cases were to be tried in military courts, they will require an amendment in the Army Act, but we are not doing that,” he said. Furthermore, he termed the matter “a regular routine procedure” which should be accepted.
On the contrary, Colonel Inam-ur-Rahim who is a retired official of the Army’s legal wing, says that under the current Army Act, civilians accused of rioting cannot be tried under the Army Act.
“If the Federal Government or the Army wants to try the May 9 rioters, then they have to change the Army Act through the parliament as it was done in 2015,” he says.
According to Colonel Inam-ur-Rahim, there is only one provision for trial of civilians in the Army Act and that too is very narrow in scope: per 2 (1) (d) of the Act, only those civilians can be tried in military courts who stand accused of:
(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923.
Contradictions in the right to appeal
In the interview with Jahangir, Sanaullah said there have been cases which were dealt with under military law, adding that the accused have the right to appeal after receiving a military court verdict in both military and civilian courts.
However, Rahim puts the matter in a different light. He states that the Army Act grants the ability to appeal the decision of the Field General Court Martial (FGCM) whenever a person is tried by military courts in the Military Court of Appeal. A Brigadier or a Major General preside over the Military Court of Appeal and who hears the appeal.
Rahim says that a review against the Military Court of Appeal’s decision can be filed before the Chief of Army Staff (COAS) whose decision will attain finality. He, however, clarifies that if an FGCM has awarded the death penalty to any accused, it is sent for the COAS’s approval. Therefore, the COAS is empowered to sign off on the death warrants of the accused.
Furthermore, Shah Khawar, a senior lawyer, added that military court convicts do not hold the right to file an appeal in civilian courts, however, the superior courts in the past have given relief to such convicts on three grounds:
(i) coram nonjudice (decided by a court that lacks authority);
(ii) lack of jurisdiction; and
(iii) bad faith.
He further stated that since the 18th Constitutional Amendment, when Article 10-A (the right to a fair trial) was added, the high courts have the authority to overturn decisions made by military courts if it is determined that the trial did not adhere to the due process of law or the principles of a fair trial.