In its verdict, a five-member bench of the Supreme Court of Pakistan (SCP) on October 23 declared the trial of civilians in the military courts unconstitutional. The Bench also declared Section 2(d) (1) and Section 59(4) (civil offences) of the Pakistan Army Act unconstitutional. This judgment was especially focusing on the trials of civilians who were involved in the violence of May 9.
The court ruled that cases of 102 civilians, involved in the incidents of May 9, shall be conducted in civilian criminal courts.
As regards Section 2(1)(d) of the Act, it states: “persons not otherwise subject to this Act who are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government, or 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” can be tried under the secrets act.
A number of legal experts opine that if the provisions of Pakistan Army Act (Section 59) were applicable in earlier cases for decades, then why now it is declared unconstitutional? Section 59(4) states: “Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly”.
It is mentionable that the Pakistan Army Act is operational since 1952 and there have been many civilians who were tried under its Section 59. Thousands of civilians have been disposed of under military law under the Pakistan Army Act 1952 and 1967. The Supreme Court of Pakistan has given several decisions in the light of these laws.
It is notable that the main purpose of this petition was to protect the miscreants caught red-handed in the riots of May 9 from the military law, because if the Army Act does not apply, then these miscreants can be easily released due to suspicion of criminal procedure, as Pakistan’s criminal law is the weakest in the world, and people can easily be given relief at will— justice has recognized the decisions made under the Army Act as due process.
On May 9, the Parliament of Pakistan has clearly passed a resolution that the involved evildoers should be tried in military courts.
The Pakistan Army Act is a law passed by the legislature and has been in force since inception, repeatedly validated by superior courts of Pakistan. Notwithstanding the debate around the 21st Amendment, a full court bench of the apex court in 2015 validated not only the military courts, but never questioned Section 2(1)d, as it deemed that the judicature is not empowered to question Parliament.
Fundamental rights are important, but are always subservient to the national security of a country. Courts, rights, legal questions are dependent upon maintaining the sovereignty of a nation which is guarded by its security forces, civil and military.
The Supreme Court and high courts have often held that trials under the Army Act are valid trials. The Supreme Court has consistently held that case of any accused for trial under the Pakistan Army Act, 1952, as amended, and any order passed or decision taken or sentence awarded in such trial shall be subject to judicial review on the grounds of coram non judice, being without jurisdiction or suffering from mala fide. So, a five-member bench cannot overturn years of precedent given by larger and full court benches.
Military courts are not a novel idea only existing in Pakistan. Jurisdictions around the world empower their militaries to try civilians in cases of serious breaches of security. Even the USA allows its military jurisdiction over civilians, who can be tried under the Uniform Code of Military Justice.
A panoramic world view shall reveal that apart from the USA, a number of countries allow military trials of civilians. Argentina, Israel, Turkey, Thailand, China, Indonesia, Kuwait, Sri Lanka, Mali, Lebanon, Malaysia, Russia, Iran, India, Cuba, Djibouti, Eritrea, Kenya, Bahrain, Chile, Peru, Mexico, Philippines, Syria, Yemen, Bangladesh, Iraq, Saudi Arabia, Burundi, Syria, Cambodia, Jordan, Sudan, Libya, Algeria, Guatemala, Columbia, Greece, Venezuela and Zimbabwe have all enacted laws that allows military to have jurisdiction over civilians. The argument that these countries are either Third-World or tightly governed, therefore their examples do not matter, is flawed, as a broad glance shall reveal another critical factor: the armed forces of these countries have been involved in insurgencies or internal conflict. In such circumstances, it is sinful to launch a military effort without empowering one’s army to deal with civilians who perform criminal acts, with swift justice.
Militaries across the world use such powers sparingly, but use them as a deterrent only by being highly selective just to create the requisite effect. This is precisely the deterrent theory of law.
However, the arrested people involved in the tragedy of May 9 had committed violence in the prohibited areas like GHQ Rawalpindi, and the Corps Commander’s residence in Lahore, PAF Base Mianwali, Inter-Services Intelligence in Faisalabad, Hamza Camp, Bannu Camp and Gujranwala Camp. The question arises, should such attackers be tried in civilian courts, while they have committed the offences in military areas?
In fact, even in the past, there was no effective prosecution in the civil courts against the persons involved in such cases. In the past, there have been attacks in GHQ, Karachi Airport and Badaber, including military installations.
Nevertheless, if the criminals of May 9 are not punished by the civil courts, the confidence of the people of Pakistan will be lost in the judicial system. Similarly, if the criminals get immunity from the civil courts, the confidence of the terrorists will be strengthened and the crime rate will increase in the country.
Now, with this decision, it seems that no matter how serious a crime someone commits, it cannot be tried under military law.
Since the loss of state is in the legal domain, hence, the restoration also lies in the same domain. Whereas the legal way forward as per the Practice and Procedure Act is an appeal against the judgment, which can launched within 30 days of the verdict and shall be decided within 14 days by the Supreme Court.
Fundamental rights are important, but are always subservient to the national security of a country. Courts, rights, legal questions are dependent upon maintaining the sovereignty of a nation which is guarded by its security forces, civil and military.
Nonetheless, in this connection, reports suggest that the federal government is likely to file an appeal very soon.
