May 25, 2023
By Ahmed Saeed
An Anti-Terrorism Court in Mardan has approved the trial of 16 individuals in military courts who were accused of damaging military monuments during the May 9 riots.
Meanwhile, the debate surrounding the legality of trying civilians in military courts continues.
The government maintains that those who directly attacked military installations can be tried under the Pakistan Army Act 1952 and the Official Secrets Act 1923.
On the other hand, legal experts are of the opinion that the government will have to amend the Constitution and the Army Act, as they had on January 7, 2015 with the passage of the 21st Amendment to try terrorists involved in the Public Army School Peshawar attack on December 16, 2014.
Pakistan is among the few countries in the world that permit military courts to try civilians under certain circumstances, and in the recent past has even awarded severe punishments such as death by hanging. According to Amnesty International, Pakistan is the only South Asian country where military courts can and are trying civilians at present.
The Army Acts of India and Pakistan are very similar as, following independence from the British Raj in 1947, both countries adopted the Indian Army Act 1911 with some modifications. The original imperial-era Act did not allow military trials of civilians. However, in 1967, Pakistan made changes to its Army Act which paved the way for military courts to try civilians.
There is no provision for trying civilians in military courts in the Indian Army Act, nor have such trials even occurred in spite of it. Certain Indian laws allow the Indian Army to arrest people in areas of concern, but such individuals are tried in civilian courts. Terrorism cases are also heard in civilian courts – Lashkar-e-Taiba terrorist Ajmal Kasab was sentenced to death by India’s civilian courts for his involvement in the 2008 Mumbai terrorist attacks.
After independence from Pakistan in 1971, Bangladesh adopted the Pakistan Army Act 1952 as the Bangladesh Army Act. Since Pakistan amended its Army Act in 1967 and allowed the military trial of civilians, Bangladesh’s Army Act also contains the same provision. Following the dismissal of President Sheikh Mujibur Rahman and the imposition of martial law by General Ziaur Rahman in 1975, civilians including minors were tried in military courts. However, there has been no instance of civilian trials in military courts in Bangladesh’s recent past.
Currently, a 2019 writ against the sentences given by military courts to civilians under the martial law of 1975 are being heard in the high court of Bangladesh, with the court hinting at annulling the sentences.
It should be noted that Bangladesh has tried and sentenced several hundred senior military officers under its Army Act for attempting to impose martial law or incite the Army to rebellion against Bangladesh’s civilian government.
As in India, Sri Lanka’s Army Act contains no such provision which permits trying civilians in military courts, nor have such trials ever happened. Sri Lanka had struggled with prolonged civil war for decades, during which there were many reported incidents of terrorism.
There is no provision for military trial of civilians in Bhutan’s Army Act, nor has it ever happened. However, under the Army Act of Bhutan, a military court can try soldiers in both civil and criminal cases.
Under the Nepal Army Act 2006, military courts cannot try civilians.
The Maldivian Army Act does not contain any legal provisions for the trial of civilians in military courts.
If we look at other countries in the region, it is known that in many countries civilians are still being punished after trial in military courts or were being punished in the recent past. But these are countries that have either had or still have military regimes and courts that have punished people who have been or have been vocal advocates for democracy.
Military courts in Myanmar have tried civilians in the past, and this process is still going on. In the country’s Army Act, the President has powers to authorize the trial of a civilian in military courts through a notification. After the 2021 military coup, in which martial law was imposed, thousands have been sentenced in Myanmar’s military courts according to a report by the Human Rights Watch.
A military government is currently established in Egypt. Since 2013, around 10,000 individuals have been tried in military courts, many of whom have been sentenced to death. Some of these military court death row convicts have been executed.
It should be noted that under Article 204 of the Egyptian Constitution, a civilian can be tried in a military court if they have attacked a military official or a building. However, several hundred civilians including university professors and students have been tried in military courts for criticizing the military regime’s undemocratic policies.
Lebanon is also among the few countries in the world where its laws permit the trial of civilians in military courts under certain circumstances.
Civilians accused of maligning Lebanon’s reputation in the international community have been tried in the country’s military courts in the past few years.
Bahrain amended its Constitution in 2017, granting military courts powers to try civilians involved in terrorist activities. According to international human rights organizations however, the amendment was inculcated to suppress freedom of expression in the country.
In 2011, in response the pro-democracy protests cropping up in Bahrain as part of the Arab Spring, the government imposed a state of emergency, granting military courts jurisdiction to try civilians. Since then, some 300 political prisoners have been sentenced by military courts.
MILITARY RULE A HISTORICAL PREREQUISITE
The precedent for civilian trials in military courts in the recent past or present is apparent in those countries where military regimes were or have been established. Furthermore, these courts have also tried and sentenced civilians for advocating for democracy.
While some countries are punishing civilians by increasing the scope of military courts, there are others that have abolished military courts and are proceeding with the trial of military personnel in regular courts.
Slovakia, Latvia and the Czech Republic have uprooted their military courts, while measures are being taken in this regard in Turkey as well. It should be noted that a military rule was established in Turkey which came to an end through a Constitutional Amendment in 2009, paving the way for conducting the trial of military officials in civil courts.
In France, Germany, Denmark, Slovenia, Estonia, Sweden, Norway, Portugal and the Netherlands, military courts can only be established during wartime, and these courts can only try military personnel.