Military courts were introduced in 2015 through the 21st Amendment to the constitution
court-martial is a tribunal that tries and determines the guilt of individuals subject to military law and charged with breaking military laws. According to the Oxford dictionary, it specifically refers to a court that tries members of the armed services accused of offences against military laws. However, the use of court-martial to prosecute civilians in special cases, is not unprecedented in Pakistan. This legal proceeding resemble civilian court trials and are typically reserved for felonies.
The establishment of military courts and extension of their jurisdiction over certain classes of civilians was legislated through the 21st Amendment to the constitution in 2015. This amendment added provisions to Article 175(3) of the constitution and inserted Entries 6 to 9 in Part 3 of the First Schedule after Entry No 5. Additionally, the Pakistan Army Act, Pakistan Navy Ordinance, Pakistan Air Force Act and Pakistan Protection Act were included. The legality of this amendment and the establishment of military courts were challenged in the Supreme Court of Pakistan in the District Bar Association Rawalpindi case. However, the amendment was upheld (PLD 2015 SC 401). Subsequently, the 23rd Amendment in 2017 provided further protection to the military courts for an additional two years.
The government of Pakistan extended its executive authority through the Pakistan Protection Act of 2014, granting the use of armed forces and judiciary in combating insurrection against the country. As a result of these legislations, civilians suspected of being involved in terrorist activities could now be tried by a court martial.
According to Section 2 of the Pakistan Army Act 1952, individuals such as officers, junior commissioned officers, warrant officers, those enrolled under this Act, individuals subjected to the Pakistan Navy Ordinance, Pakistan Air Force Act, and individuals employed by or in the service of any portion of the Pak Army (who are not otherwise subject to this Act) fall under the jurisdiction of a military court.
A person who is not otherwise subject to the Pakistan Army Act can still be punished under this Act by a court martial. This applies to individuals accused of seducing or attempting to seduce any person subject to the Army Act from their duty or allegiance to the government. It also applies to individuals who have committed offences related to defence works, arsenals, naval or military establishments, ships or aircraft, or those involved in matters concerning the Naval, Military or Air Force affairs of Pakistan. Additionally, individuals accused of offences under the Official Secrets Act of 1923 can also be punished under the Pakistan Army Act.
In 2017, Section 2 of the Pakistan Army Act underwent further amendment. According to the revised section, individuals who claim or are known to belong to a terrorist group or organisation that misuses the name of religion or a sect, and engage in activities such as raising arms or waging war against Pakistan, attacking the armed forces or law enforcement agencies, targetting civil or military installations in Pakistan, using or designing vehicles for terrorist acts, abducting individuals for ransom, causing the death or injury of a person, or creating terror or insecurity in Pakistan, or attempting to commit any of these acts within or outside Pakistan, shall be punished under the Army Act.
Before convicting an accused person, the grounds of arrest must be communicated to them within 24 hours of their arrest. They can engage a counsel of their choice, and if they are unable to do so for any reason, the convening authority is obligated to provide counsel at the state’s expense.
The federal government holds the power, as stated in Section 2(4), to transfer any proceedings under Section 2(1)(d) from any court to be tried under the Military Act. Military courts, under Section 60 of the Army Act, possess the authority to convict accused persons with penalties such as death, life imprisonment, amputation of hand, foot, or both, whipping up to a maximum of 100 stripes and dismissal from service, among others.
Confirmation by the Chief of Army Staff or an authorised person is required for the findings of a court-martial to be valid, as outlined in Section 119. Sections 120 and 124 grant the confirming authority the power to mitigate, remit or commute sentences. However, confirmation is not needed for the findings of a Summary Court Martial, as stated in Section 127. If an aggrieved person wishes to challenge the findings, they can submit a petition to the confirmation authority, and after confirmation, to the Chief of Army Staff, the federal government, or any prescribed officer superior in command to the confirming authority, according to Section 131.
No appeal can be filed against a finding of the military court, as Section 133 provides a bar on such appeals. However, under Section 133B of the Army Act, an appeal can be filed within 40 days against a death sentence, life imprisonment, a sentence exceeding 3 years, or dismissal from service. The appeal is to be made to a court of appeals consisting of the army chief or one or more designated officers. The decision of the court of appeal shall be final and cannot be challenged on any ground before any court or authority whatsoever.
Military court judgments have not been subject to scrutiny by the High Court or Supreme Court through appeals or revisions. However, the validity of these judgments can be challenged in writ jurisdiction based on grounds such as mala fide and coram non-judice (lack of authority). The Supreme Court of Pakistan, in the case of Said Zaman (2017 SCMR 1254), has held that the decision of a military court can be challenged on grounds including mala fide, coram non judice, malice in law and lack of jurisdiction.
The Peshawar High Court, in the case of Abdur Rashid (PLD 2019 Peshawar 17), has added additional grounds for judicial review of military court judgments, including insufficient evidence, absence of jurisdiction, delay in recording confessional statements and cases where no evidence is presented. However, Article 199 (3) and (5) of the constitution of Pakistan restrict the jurisdiction of the High Court from interfering in the judgments passed by military courts.
Several objections are raised against military courts. First, the trial of civilian accused in these courts is deemed to be a violation of the right to a fair trial guaranteed by Article 10-A of the constitution. Second, the principle of independence of the judiciary is compromised when military courts conduct trials. Third, military court trials imply a lack of confidence in the regular criminal courts in the country.
The evaluation of evidence and interpretation of the law should be entrusted to the ordinary courts, which possess the necessary expertise in these matters. Concerns regarding due process of law and transparency also surround military court trials.
Trials of civilians in military courts are seen as a violation of Article 14 of the International Covenant on Civil and Political Rights, which Pakistan has ratified. It is argued that existing provisions in ordinary criminal law can be used to prosecute cases of vandalism and destruction of public property. In the case of Abdur Rashid mentioned earlier, the Peshawar High Court highlighted various legal flaws and acquitted around 100 people due to reasons such as lack of solid evidence, not being directly charged in the First Information Report (FIR) by name, delayed confessional statements and denial of the opportunity to engage defence counsel. However, the Supreme Court of Pakistan suspended the operation of the said judgement, and it is currently pending adjudication in the Supreme Court.
The writer is an advocate of the Supreme Court of Pakistan based in Peshawar. He has an LLM in constitutional law.