Civilians in Military Courts

Military courts are conducted in an extremely disciplined manner without any delays and unnecessary adjournments, which are the norm in civil courts.

By Justice (R) M. Shaiq Usmani | August 2023

Military courts, in essence, are meant to try those who are subject to military discipline and laws relating to the functioning of the military. This is only natural and fair because the laws to which the military personnel are subject to are tougher and much more onerous than those common citizens, or in other words, civilians, are subject to. Besides a military person, when he joins the forces, he willingly subjects himself to laws relating to the military, howsoever tough these may be, and grows up in the service under the shadow of these laws.

The Constitution of Pakistan also acknowledges this fact, as enshrined in Article 10-A, that a citizen faced with a criminal charge will be entitled to a fair trial and due process. In another Article, i.e., Art 175(2), the Constitution clearly provides that a court will have only the jurisdiction as provided by the Constitution, which clearly gives such jurisdiction to civil courts. This later provision was subsequently amended by two amendments, 21st and 23rd, in 2015 and 2017, whereby certain offences under the Army Act 1952 were permitted to be tried by military courts, but both these amendments had sunset clauses and are not in force any longer.

However, Section 2(d)(i)(ii) of the Army Act, 1952 provides for civilians, who commit certain offences that are directed towards military installations and an offence under Official Secret Act to be subject to Pakistan Army Act, 1952 thereby making them liable to be tried under Pakistan Army Act. These provisions are still part of the Act and read as under and remain valid.

2. Persons subject to the Act-(I). The following persons shall be subject to this Act, namely:

(d) persons not otherwise subject to this Act who are accused of:

(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or,
(ii) 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, an offence under the Official Secrets Act, 1923.

It is obvious that the offences, as mentioned above, are of sensitive and serious nature that relate to the security of military installations and directly concern the military. If these are to be tried by civil courts, the military will have to be the complainant and will also have to provide evidence, which for security reasons, it may not consider appropriate to do so. As can be seen, these provisions do not give any open-ended license for civilians to be tried by military courts for any offence. These provide for only a limited avenue to punish those who deliberately damage military installations, of which an ordinary civil judge cannot appreciate the gravity nor the effect of such an act on the morale of military personnel for the lack of doing anything about it.

Post May 9, 2023, when certain individuals attacked the Army/Air Force installations, a lot of hue and cry has been raised about the trial of civilians by military courts, and a number of petitions have been filed in the Supreme Court mostly on the grounds that trial by military courts would not be a fair trial in terms of Article 10-A of the Constitution and will be a denial of due process to the civilians.

It is obviously not possible to predict what the Supreme Court will hold when these petitions are heard, but to the extent that these petitions are based on the premise that the trial before a military court will not be a fair trial, it is a misconception. The military courts differ from the civil courts only to the extent that the judges in the military wear the uniform of the armed forces and are not lettered in law, but these courts are conducted in an extremely disciplined manner and without any delays and unnecessary adjournments, which are the norm in civil courts.

Besides, the judges in these courts are invariably assisted by a judge advocate general, who is adequately lettered in law. In addition to that, all rules of evidence as per Qanoon-e-Shahadat are duly observed. The accused is permitted to choose to be defended by any lawyer, even a civilian lawyer, and there happen to be three stages of appeal available to him against a decision by the court, firstly to the Armed Force Chief, then to the High Court, and lastly to Supreme Court. It is thus obvious that the argument that a trial before a military court cannot be considered a fair trial would not hold. For that matter, it is doubtful whether these days, even a trial before a civil court, strictly speaking, can be regarded as a fair trial because of the well-known bias of Judges in the subordinate judiciary.

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