Daily Times

The 1952-enacted Pakistan Army Act is used to prosecute military personnel according to the military’s judicial system. The Act is designed to bring charges against soldiers and people who are anyhow associated with the armed forces. The Field General Court Martial is the name of the military tribunal that hears cases brought under the statute. The military’s legal directorate, also known as the Judge Advocate General (JAG) branch, is in charge of this military court’s operations. Both the prosecution’s attorney and the court’s president are active-duty military personnel. The penalties can range from two years to a life sentence or possibly the death penalty, depending on the seriousness of the offence.

Sections 2(d) (1) (2) and 59 of the Pakistan Army Act were added for the first time in 1967 by the Defence Services Laws Amendment Ordinances 3 and 4 of 1967, bringing into its purview civilians charged under the Official Secrets Act of 1923. This allowed for the prosecution of civilians accused of inciting mutiny among the rank and file through written and verbal material. The federal government has the power to choose whether a trial should be conducted in a civilian or military court. Additionally, the military laws are exempt from challenge under the terms of Article 8 of the 1973 Constitution, according to the Constitution. Military courts have used the rules of evidence and the Criminal Procedure Code of 1898. In situations when the Court Martial and Criminal Court have concurrent jurisdiction, the prescribed officer is competent and has discretion under section 94 of the Military Act of 1952.

Two arguments in favour of applying military law to civilians are presented. One side of the debate contends that utilizing military tribunals to trial civilians undermines the civil judicial system, calls into question the fairness, openness, and accountability of the legal system, and could lead to human rights violations. Supporters contend that using military courts is necessary to successfully and quickly try crimes related to terrorism while maintaining national security. However, it is important that the land law grants the authority to trial civilians in military courts, and the Superior Courts have endorsed such provisions up till now.

It is important to note that the Apex Court, first time thoroughly considered the legality and constitutionality of the “Brig (Retd) F.B. Ali’s case PLD 1975 SC 506 came to the conclusion that a civilian who would typically be subject to the country’s regular law might be tried by a Military Court under the Military Act 1952. In the ruling described above, the Supreme Court carefully examined the legality of Ordinance No. 3 and 4 of 1967 from a number of perspectives, including the cornerstone of fundamental rights protected by our Constitution, namely the Constitution of the Islamic Republic of Pakistan, 1973. Since that time, the aforementioned revised clauses in Military Act 1952 have been contested in Superior Courts, but they have not been found to be in violation of the law and are still in effect.

After the events of May 9th, the issue of civilians being tried in military courts has once again come under scrutiny before judicial forum, and the Supreme Court has held multiple hearings on the subject under jurisdiction of Article 184 of the Constitution. However, during the most recent session, the Bench expressed several suggestions for the government to take into account. There is some support for the idea that the Military Act has to be amended in order to provide for the right of meaningful appeal before an independent forum for the trials of civilians by military courts.  In addition, it is a well-established principle of criminal justice that neutrality and impartiality, as well as the proper legal observance of the accused rights as outlined in the Constitution and the criminal justice system, must be evident and upheld at all stages of proceedings in order to give such proceedings credibility and ensure that due process of law is followed.

The right to choose one’s own attorney is something that civilians who are being tried in military courts under the Military Act should have. Additionally, the trial’s proceedings should not be held in secret; instead, they should be open to the public with the permission of the presiding officers relating to the civilians trial. Finally, certain individuals, including the civilian accused’s relatives, should be allowed to observe the trial’s proceedings.

Therefore, it would be important for the federal government to issue a Presidential Ordinance or swiftly pass amendments to have a right of meaningful appeal by amending section (2) (d) read with section 133 of the Army Act 1952 with exclusion the jurisdiction over regular military employees for those civilians who if would have been given sentences by the military court and to avoid any contrary future judgment. Since the federal government has already issued this exercise of appeal in the Ghalbossahn case through an Ordinance to satisfy the requirements of the International Court of Justice earlier in recent history, the right of regular appeal before an independent forum would not be a novel phenomenon. Accordingly, the same principle to be applied here.