Image Source:
Arab News, Trial of civilians in military courts ‘totally unjustified,’ Pakistan’s top rights body says <https://www.arabnews.pk/sites/default/files/styles/n_670_395/public/2023/05/31/3844491-167703239.jpg?itok=_gy4jUaj > accessed 26 July 2023.
Introduction
On May 9, 2023, violence erupted across Pakistan as the rangers detained former Prime Minister of Pakistan Mr. Imran Khan on corruption charges. The supporters of Mr. Khan assaulted police officers and set fire to ambulances, police cars, military headquarters, homes of military personnel, and other buildings in various cities.Following those riots, the civilians are being tried in military courts under Pakistan Army Act, 1952. The trials of civilians in military courts have been greatly criticized both at national and international levels. Human Rights Watch said; “the Pakistan government should immediately transfer civilians set to be tried in military courts to the civilian justice system.[1]” Similarly, many petitions have been filed in the Supreme Court against the trial of civilians in military courts. The Pakistani lawyer Aitzaz Ahsan filed a constitutional petition in the apex court through Latif Khosa and Barrister Salman Akram Raja. The petition challenged the validity of these trials on various grounds including the infringement of the fundamental rights of civilians. Moreover, it has been argued that the trial of civilians in military courts during peacetime is against the doctrine of separation of powers, independence of the judiciary, and the fundamental right of due process and fair trial enshrined in the Constitution.
As far as the history of military courts is concerned, the same were developed under Pakistan Army Act, 1952 adjudicating the cases involving military personnel accused of certain offenses outlined in the Army Act. However, after the 21st Amendment to the Constitution in 2015, the scope of jurisdiction of the military courts expanded to civilian trials as well. Now, the Government of Pakistan constitutes 11 military courts to hear “terrorism” cases under the 21st Amendment to the Constitution and the amended Army Act, 1952, after the dreadful attack on Army Public School in 2014. These courts have thus far concluded 64 trials, finding the defendants guilty in 40 cases. Out of them, 36 people have been sentenced to death and four have been given life sentences.[2] The main objective behind the creation of military courts was to efficiently convict persons for the crimes against the State and National Security such as terrorism. Most recently, Pakistani police have handed over 33 Pakistani civilians to the army for prosecution in military courts who are accused of targeting key defense locations of the country, destroying and stealing vital government equipment.
Nature of Military Courts
Military justice is a kind of legal justice system that is primarily applicable to military personnels and, in some cases, civilians. At various times in history, military courts have been used in many countries for civilian trials. In Pakistan, the military courts function under the Pakistan Army Act (PAA), 1952[3], and the Official Secrets Act, 1923[4].
The nature of military courts is entirely different from that of civilian courts. These courts have their own set of rules and function under a distinct legal framework. Similarly, the judges presiding over these courts are also military officers who are known as court martial. Unlike civil courts, the proceedings in military courts are conducted behind closed doors where the general public is not allowed. Due to which, their functioning is greatly debatable and subject to criticism in Pakistan. Another criticism is that these courts do not follow due process and provide fair trials to the accused. The decisions rendered by these courts are subject to judicial review by the High Courts and then the Supreme Court of Pakistan.
According to government sources, provincial committees comprising civilian and military officials are responsible for selecting the cases of individuals charged with terrorism-related offices to be referred to the military courts for trial and forwarding them to the Ministry of the Interior for final approval.[5] Under the PAA, 1952, a military court is composed of three to five serving officers of the armed forces. There is no requirement that military officers be lawyers or have any legal training. The officers remain subject to the military chain of command.[6]
The Legality of Military Courts in Pakistan
Initially, the PAA, 1952 was restricted to the adjudication of civilians in a very narrow sense, but after the 21st Amendment to the Constitution, the military courts’ jurisdiction vastly expanded over the civilians. Before the 21st amendment, civilians could only face martial trial if they “seduced, or attempted to seduce” the persons subject to the act or the civilians working in the military installations.[7] However, the 21st Amendment broadened the scope of Sec. 2 (1) (d) of PAA, 1952 and empowered it to try civilians in other offenses like attacking civil or military installations, possessing firearms and explosives for nefarious purposes, and aiding terrorist activities.[8] This amendment also made it clear that the prosecution of offenses under the Act will initiate with the prior consent of the federal government. Moreover, after the 23rd Amendment to the Constitution,[9] Military courts have jurisdiction to try people who claim to, or are known to, belong to “any terrorist group or organization misusing the name of religion or a sect” and are accused of carrying out acts of violence and terrorism.
The First Schedule of the Constitution of Pakistan, 1973 lays down certain laws which are exempted from the operation of Article 8(1) and (2), Article 8(3)(b) and (4) of the Constitution. One such law is PAA, 1952. Article 8 makes all the laws which are inconsistent with the fundamental rights void; however, with the application of exemption under the First Schedule, PAA, 1952 is exempted. Hence, apparently, if PAA, 1952 has any provisions which are inconsistent with the fundamental rights, those provision are exempted, and would not be declared void. The Pakistan Army Rules, 1954 also provide the legal procedure (due process) to be followed when a person is charged with an offense subject to the jurisdiction of a court martial.[10] Section 549 (3) of the Code of Criminal Procedure (CrPC) of Pakistan states, “A person arrested by the police if subject to Pakistan Army Act, 1952 and the offense committed triable by Court Martial will be taken in custody by the military and investigated accordingly”[11] read with Rule 7 (f) of the Criminal Procedure (Mil Offenders) Rules 1970. Moreover, the Protection of Pakistan Act, 2014[12], also extended the authority of military and police officials in certain specified offenses. This Act allows the detention of an accused for 90 days, which is contrary to the prevailing law in Pakistan.
In addition to this, there are certain Supreme Court judgments that validate the trial of civilians in military courts under PAA, 1952. For instance, in F.B. Ali v. The State[13], the appellants claimed that the provisions of the PAA, 1952 cannot be extended to persons who are not in association with the Army. Therefore, making civilians or retired Army personnel subject to this Act would be against the intention of the legislature. However, dismissing this appeal, CJ Hamoodur Rahman held that “if the Army Act is a valid piece of legislation, then it does permit the trial of civilians, in certain circumstances, by a military court even in times of peace.”[14]
Moreover, in District Bar Association Rawalpindi v. Federation of Pakistan,[15] along with the 18th Amendment and the Basic Structure Doctrine, the petitioners challenged the 21st Amendment to the Constitution which expanded the scope of military courts to try civilians along with military personnel. The petitioners claimed that the 21st Amendment had undermined the scheme of the Constitution by violating the doctrine of separation of powers and excluding the norms of fair trial and due process. The court held that the provisions of the 21st Amendment and PAA, 1952 (as amended in 2015) are intra vires the Constitution. The expansion of the jurisdiction of the military courts to civilians is in direct nexus to the defense of the country and does not abrogate, repeal, or alter the Basic Structure of the Constitution.[16] Moreover, any decision taken or order passed by the military courts under PAA, 1952, if rendered without jurisdiction or malafide, is subject to Judicial Review by the High Courts and the Supreme Court of Pakistan.[17]
Lastly, in Said Zaman v. Federation of Pakistan,[18] although the accused who participated in the attacks against Pakistan Army were civilians, they were tried by Field General Court Martial (FGCM) under PAA, 1952. The apex court upheld the decision of FGCM and confirmed the death penalty for all (16) convicts. The nature of the offense for which the accused is convicted was exactly the same “mischief” which then necessitated the enactment of the 21st Amendment. Therefore, the instant case of trial by Field General Court Martial was the fulfillment of due process and did not violate the Constitution.[19] In this case, the District Bar Association case was put into action, in which it was held that PAA, 1952 (as amended in 2015) was effectively incorporated in the First Schedule of the Constitution, which is immune to the challenge of being in violation to the fundamental rights, including those incorporated in Arts. 10 and 10(A) of the Constitution.
Fairness of Military Trials: Transparency and Procedural Issues
Despite the legality of military courts, the “confidential” procedures of court-marshaling civilians raise significant concerns regarding the fairness and transparency of their trials. This confidentiality not only entitles military courts to try civilians in secrecy without accountability but also contravenes the legal principles of fair trial and justice. Thus, it directly violates the right to a fair trial enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan.[20] During the 2015-17 trials, these special courts awarded death sentences to 161 convicts. The military did not disclose any information about those convicts but ascertained that 94.6% were awarded punishment based on their confessions.[21] This confession rate is troublesome because the convictions based on confessions in ordinary murder cases are not even 5%.[22]
Under section 133 of the PAA, 1952, an appeal against the decision of Field Martial can only be filed in the Court of Appeal, the decision of which cannot be challenged in any civilian court, which means the apex and High courts of Pakistan cannot exercise appellate jurisdiction over the military court verdicts. However, this provision is against the decision of the apex court in the District Bar Association case[23], in which it was held that any decision rendered by the Field Martial will be subject to the judicial review by the High Courts and the Supreme Court of Pakistan if found malafide and without jurisdiction. Therefore, the section being repugnant to this decision is ought to be struck down.
After May 9 riots, petitions were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, and PTI Chairman Imran Khan against the trial of civilians in military courts. The former CJP Jawwad S. Khawaja pleaded that section 2(1)(d)(i) and (ii) of PAA, 1952, being inconsistent with fundamental rights, should be struck down and the trial of civilians in military courts be declared unconstitutional. Another important thing to note here is that the State can only take away the fundamental rights in the state of emergency and internal disturbances within the State, under the constitution.[24] However, calling the 9th May attack an internal disturbance is debatable. According to the PTI lawyer, Advocate Gohar Khan, under Articles 9, 14, 17, 19, and 23, the government’s decision to deploy the army was aimed at depriving the citizens of Pakistan of access to their constitutional right to life, dignity, association, equality and protection of property. While hearing the pleas against the trial of civilians in military courts, CJ Umar Ata Bandial observed that military law is different from ordinary law and is good for military personnel only. Another concern raised by CJP was that the military trials were neither open to the public nor subject to judicial review; therefore, the civilians should not be put through the harshness of these trials, and the same is not according to the Constitution of Pakistan. While making these observations, CJP directed the Attorney General for Pakistan “to seek directives from the government regarding the right of appeal in military courts.”[25]
Lastly, the trial of civilians has been criticized at the international level as well. The International Commission of Jurists (ICJ) mentioned that the system of military courts is a “glaring surrender” of human rights in Pakistan. Pakistan is a signatory of various international conventions that protect the right to a fair trial and due process.[26] For instance, Art. 14 of the International Covenant on Civil and Political Rights (ICCPR) state that states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” Contrary to the said provision, the trials in military courts violate the rights of the accused in several ways including the denial of public hearings, the denial of the counsel of one’s own choice, and the denial of visits by family members. As evident, the regulatory framework regarding the free and fair trial of the citizens exists both in the local law and international conventions ratified by Pakistan, but no due process is followed in the military courts which results in the coerced confessions, torture, and illegal treatment of the accused.
Conclusion
In conclusion, the trials of civilians in military courts have been questioned and open to international critique, but one cannot deny the fact that these trials find their legality in the Constitution and the precedents set out by the apex court of this country. After the May 9 riots and trials of civilians in military courts, the constitutionality of these courts has been once again challenged in the Supreme Court. The nature of these courts is quite distinct from the ordinary civil courts. The methods of trial, the judges, and the legal framework under which these courts function are entirely different from civil courts, creating a parallel judicial system. Due to which, these are subject to criticism of going against the principles of fair trial, due process, and the independence of the judiciary.
To counter such issues, legislative changes should be brought into the legal system to strengthen the civil justice system. To bring the criminal justice system in conformity with domestic law and international regulations, such changes are necessary, which otherwise will result in the erosion of the country’s administration of justice and the rule of law. The Peshawar High Court 2018[27] decision was one such step towards to demilitarization of justice. In this case, the High Court set aside the decision of the military court awarding death punishment to 74 convicts in various cases of terrorism. The Court, upon assuming jurisdiction on the grounds enlisted in the Said Zaman case, overturned the decision of Field General Court Martial which was rendered without jurisdiction, lack of evidence, and mala fide in facts and law.
Pakistan, which has constantly raised voices against the oppression of the Kashmiris and Palestinians, has been criticized for the infringement of the fundamental rights of the citizens under the pretense of political expediency. Therefore, those arrested should be tried impartially and be guaranteed fairness in their trials. The perpetrators of violence should be held accountable but not at the cost of the principles of the rule of law and under the label of “secret proceedings.”
[1] Human Rights Watch (2023) “Pakistan: Don’t Try Civilians in Military Courts.” < https://www.hrw.org/news/2023/05/31/pakistan-dont-try-civilians-military-courts > accessed 24 July 2023.
[2] International Commission of Jurists (2018), Pakistan: The trial of civilians by military courts. < https://www.icj.org/wp-content/uploads/2016/01/Pakistan-military-courts-brief-Advocacy-Analysis-brief-2016-ENG.pdf > accessed 25 July 2023.
[3] Pakistan Army Act, 1952.
[4] Official Secrets Act, 1923.
[5] International Commission of Jurists (2019), Military Injustice in Pakistan < https://www.icj.org/wp-content/uploads/2016/12/Pakistan-military-courts-QA-Advocacy-2016-ENG.pdf > accessed 19 July 2023.
[6] Section 85 of the Pakistan Army Act, 1952: A general Court martial shall consist of not less than five officers each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain. Section 87 of the Army Act: A field general Court martial shall consist of not less than three officers.
[7] Constitution (Twenty-First Amendment) Act, 2015.
[8] Sec. 2(1) (d)(i)(ii)(iii) of the Pakistan Army Act, 1952 (as amended in 2015).
[9] Constitution (Twenty-Third Amendment) Act, 2017.
[10] Pakistan Army Rules, 1954.
[11] Code of Criminal Procedure, 1898.
[12] Protection of Pakistan Act, 2014.
[13] F.B. Ali v. The State (PLD 1975 SC 506)
[14] Ibid, para 521.
[15] District Bar Association Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)
[16] Ibid, para 180(f)
[17] Ibid, para 180(h)
[18] Said Zaman v. Federation of Pakistan (2017 SCMR 1249)
[19] Ibid, para 287
[20] The Constitution of Islamic Republic of Pakistan, 1973, Article 10-A. Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.
[21] Asad Hashim (2017), ‘Pakistan to Renew Military Courts For ‘Terror’ Suspects’, Al Jazeera < https://www.aljazeera.com/news/2017/3/22/pakistan-to-renew-military-courts-for-terror-suspects > accessed 26 July 2023.
[22] Seemal Hameed (2019), “Military Courts: An Affront to Human Rights,” RSIL Law Review Vol.1. < https://rsilpak.org/wp-content/uploads/2023/03/MILITARY-COURTS-AN-AFFRONT-TO-HUMAN-RIGHTS.pdf > accessed 23 July 2023.
[23] District Bar Association Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401).
[24] The Constitution of Islamic Republic of Pakistan, 1973. Article 232, Proclamation of emergency on account of war, internal disturbance, etc.,
[25] WN News, “Military Trials of Civilians,” July 19, 2023.< https://www.dawn.com/news/1765615/military-trials-of-civilians-agp-told-to-seek-directives-from-govt-regarding-right-of-appeal-in-military-courts > accessed July 24, 2023.
[26] Article 8, 10 and 11 of UDHR, Article 14 and 15 of ICCPR.
[27] Peshawar High Court, Writ Petition 536-P of 2018.
Bibliography
Primary Sources:
Code of Criminal Procedure, 1898 (Act V of 1898)
Constitution (Twenty-Fisrt Amendment) Act, 2015 (Act I of 2015)
Constitution (Twenty-Third Amendment) Act, 2017 (Act XII of 2017)
Constitution of Islamic Republic of Pakistan, 1973, with the Provisional Constitution Order, 1981
District Bar Association Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401)
F.B. Ali v. The State (PLD 1975 SC 506)
Official Secrets Act, 1923 (Act XIX of 1923)
Pakistan Army Act, 1952 (Act XXXIX of 1952)
Pakistan Army Rules, 1954
Peshawar High Court, Writ Petition 536-P of 2018
Protection of Pakistan Act, 2014 (Act X of 2014)
Said Zaman v. Federation of Pakistan (2017 SCMR 1249)
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
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Human Rights Watch (2023) “Pakistan: Don’t Try Civilians in Military Courts.” < https://www.hrw.org/news/2023/05/31/pakistan-dont-try-civilians-military-courts > accessed 24 July 2023
International Commission of Jurists (2018), Pakistan: The trial of civilians by military courts. < https://www.icj.org/wp-content/uploads/2016/01/Pakistan-military-courts-brief-Advocacy-Analysis-brief-2016-ENG.pdf > accessed 25 July 2023
International Commission of Jurists (2019), Military Injustice in Pakistan < https://www.icj.org/wp-content/uploads/2016/12/Pakistan-military-courts-QA-Advocacy-2016-ENG.pdf > accessed 19 July 2023
Asad Hashim (2017), ‘Pakistan to Renew Military Courts For ‘Terror’ Suspects’, Al Jazeera < https://www.aljazeera.com/news/2017/3/22/pakistan-to-renew-military-courts-for-terror-suspects > accessed 26 July 2023.
Seemal Hameed (2019), “Military Courts: An Affront to Human Rights,” RSIL Law Review Vol.1. < https://rsilpak.org/wp-content/uploads/2023/03/MILITARY-COURTS-AN-AFFRONT-TO-HUMAN-RIGHTS.pdf > accessed 23 July 2023.
WN News, “Military Trials of Civilians,” July 19, 2023 < https://www.dawn.com/news/1765615/military-trials-of-civilians-agp-told-to-seek-directives-from-govt-regarding-right-of-appeal-in-military-courts > accessed July 24, 2023.
Authors
Ameera Khurshid, Research Associate, RCIL & HR.
Fahad Ashfaq, Research Associate RCIL & HR.
Henson Kwok, Research Associate RCIL & HR. Kowmaran, Research Associate RCIL & HR.