May 23, 2023
By Ahmed Saeed
The attacks on civilian and military installations during the May 9 riots following the arrest of former Prime Minister Imran Khan from Islamabad High Court’s premises received widespread condemnation.
Since then, the Armed Forces of Pakistan have released five strongly-worded press releases, declaring 9 May a “black day” and announcing the military’s resolve to bring all the culprits involved in the riots, including orchestrators, instigators, abettors and perpetrators, to justice.
The Army also proposed to try all those involved in attacking and vandalising military installations in military courts, which was approved by the country’s National Security Committee (NSC) and subsequently the Federal Cabinet.
The military’s communication wing, Inter-Services Public Relations (ISPR), in a press release on May 20 quoted Chief of Army Staff (COAS) General Asim Munir that “the legal process of trial against planners, instigators, abettors and perpetrators involved in 9 May tragedy has commenced under Pakistan Army Act and Official Secret Act as per existing and established legal procedures derived from the Constitution of Pakistan.”
Since then, rights activists and civil society organizations have started raising questions over the legality of the trial of civilians in military courts.
Voicepk.net talked to lawyers and experts in military law to look into the process of military justice for civilians and the role of civilian apparatus.
In the aftermath of the APS incident in 2014, Pakistan amended its Constitution and the Army Act to try civilians accused of terrorism in military courts. But those amendments had a sunset clause, which expired in 2019.
What does the Army Act Say?
Section 2(1) (d) of the Army Act allows the trial of civilians in military courts, but that provision has a very narrow scope – per the same provision, 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
Colonel Inam-ur-Rahim, a retired official of the Army’s legal wing, Judge Advocate General (JAG) branch, says that under the current legal scheme, 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.
‘Official secret act can be applied against rioters’
Shah Khawar, a senior lawyer, believes that the military can try May 9 protestors in military courts by invoking the Official Secrets Act 1923. He explains that the Act restricts the entry of unauthorized persons in prohibited areas in cantonments, and therefore those who violate these prohibitions can be tried under the Army Act.
“All the official residences of military officers fall under the definition of prohibited areas and those who trespass such properties can be tried in military courts,” he explains, adding that only those civilians can be tried in military courts who are booked under those sections of the Pakistan Penal Code (PPC) for which the right to trial has been delegated to military courts under the Pakistan Army Act or any other law.
How do military courts take cognizance of cases against civilians?
Rahim says that an FIR is a prerequisite to try a civilian in military courts.
“After the registration of an FIR, the case file will be presented before the court of a class-one magistrate who, if he considers the case fit for a military trial, can remand the case to the military court. The police will then subsequently hand over the accused and case file to military authorities.”
Rahim also explains that the magistrate can also refuse to send the case to military courts.
“It is a matter of concurrent jurisdiction, meaning the magistrate can also send the case to a sessions court for trial by denying the military request. Sessions courts have the inherent right to try civilians, and this right cannot be snatched away from them under any circumstances,” he says. “If the magistrate sends the case to the military court for trial, then the military officials will complete the investigation and submit a summary of evidence before the military court and give a charge sheet to the accused 24 hours prior to the start of a trial.”
What is a military court?
Talking about the composition of a military court, Rahim says that the technical nomenclature of a military court is Field General Court Martial (FGCM) , and it comprises three military officials; one who has the rank of a Colonel rank and two of Major ranks.
The court is headed by the Colonel, who is also called the President of the FGCM. Rahim explains that these military judges do not have a degree in law but they are required to have passed courses on military laws during their services.
“To assist these officers on legal intricacies, an officer of the Judge Advocate General (JAG) branch is deployed with the court. The JAG branch officer must have a law degree,” Rahim tells Voicepk.net.
Right of appeal against military court’s verdict
The Army Act provides the right of appeal against the verdict of the FGCM. The appeal is heard by the Military Court of Appeal and it is usually presided over by either a Brigadier or a Major General.
Rahim says that a review against the Military Court of Appeal’s decision can be filed before the COAS whose decision will attain finality. He, however, clarifies that if an FGCM has awarded the death penalty to any accused, it is sent to the COAS’s approval. Therefore, the COAS is empowered to sign off on the death warrants of accused.
Can military court convicts get relief from superior courts?
Answering a question about judicial review of military court decisions, Khawar says that military court convicts cannot file an appeal as a matter of right however the superior courts in the past have given relief to such convicts on three grounds:
(i) coram nonjudicial (decided by a court that lacks authority);
(ii) lack of jurisdiction; and
(iii) bad faith.
He adds that after the insertion of Article 10-A (right to a fair trial) after the 18th Constitutional Amendment, the high courts are empowered to set aside military court rulings if the trial is found to be bereft of principles of a fair trial and/or if the due process of law is not followed.
On October 18, 2018, a two-member bench of the Peshawar High Court (PHC) comprising then PHC Chief Justice Waqar Ahmed Seth and Justice Lal Jan Khattak set aside convictions (the majority of them death sentences) in 75 military court cases. In its 173-page verdict, the court found that the convictions were based on malice in law and facts, and ordered the respondents, including federal and provincial governments, to free all convicts if they were not wanted in any other case.
However, on November 2, 2018, the Supreme Court of Pakistan issued a stay on the verdict, which has remained since.