October 28, 2023
On assessing the Supreme Court’s (SC) October 23 judgement on the Army Act of 1952, Colonel Inam-ur-Rahim, a prominent lawyer and retired official of the Pakistan Army’s legal wing, Judge Advocate General (JAG) branch, asserts that the verdict has permanently closed the door on civilian trials in military courts.
The five-member larger bench of the Supreme Court lead by Senior Pusine Judge Justice Ijaz Ul Ahsan, held that the military cannot try civilians who were arrested in the wake of the violent May 9 protests.
The order stated that the trials of 103 civilians and accused persons, identified by the government in a list provided to the SC, and all other persons who may be placed under trial in connection with the events of May 9, should be held in civilian courts.
In its short order, the apex court also declared that section 2(1)(d) and 59(4) of the Army Act, which empower the military to try civilians in military courts, were unconstitutional and of no legal effect.
“Ayub amended Army Act to quell agitation against him”
“We have been campaigning for the abolishment of sections 2(1)(d) and 59(4) of the Army Act for the last 10 years as these are in violation of the fundamental right to fair trial, enshrined in Article 10(A) of the Constitution,” Rahim said in an exclusive interview with Voicepk.net.
Discussing the history of these two controversial sections, he also explained that they were not part of the original Army Act enacted in 1952.
“These two sections were introduced in the Army Act in 1967 by the then military ruler General Ayub Khan through the Defence Services Laws Amendment Ordinance. The main reason for these amendments was to punish civilians through military trials for agitating against the military dictator.”
“Courts declared military courts illegal in the past”
He also stated that this is not the first time that courts have declared military trials of civilians null and void.
“In 1977, during Zulfiqar Ali Bhutto’s rule, military courts were established to try civilians who were protesting against the government. A petition was filed in the Lahore High Court by a lawyer, Darvesh Mohammad Arabi, and the court declared the military courts extra-constitutional,” the retired army official said.
However, in 2015, after the Army Public School (APS) Peshawar incident, the Parliament enacted the 21st Amendment to pave the way for military courts to try terrorists. The 21st Amendment was also challenged in the Supreme Court which, by a majority of 11 to six, upheld trying civilians military courts.
It is important to mention here that the 21st Amendment had a sunset clause of two years, and was eventually repealed.
“I was arrested by the military for assisting the SC”
Rahim said that throughout his military career, he observed that the basic principles of justice are often not upheld during court-martial, due to which he decided to raise his voice against it.
He was also arrested in 2019 by military authorities under the Official Secrets Act of 1923 and remained in their custody for over a month when the Lahore High Court issued orders for his immediate release.
“I was arrested because I apprised the Supreme Court — while it was hearing a petition against General Bajwa’s extension as Army Chief — that under the Army Act rules, the Army Chief’s tenure cannot be extended. I gave the booklet of rules to the court,” he said.
He also added that the military cannot try civilians under the Official Secrets Act, and only a special court presided over by a session judge can conduct the trial. Rahim said that there is no justification for military trials of civilians, as military officers are not trained to conduct trials.
“Military courts will strain relations between civilians and military personnel, as we have experienced in the past during General Musharraf and General Raheel’s tenures.”
He advised that instead of establishing military courts every few years, the government should strengthen the criminal justice system and make prosecution more effective.