All members of the armed forces as well as civilians can, under the Pakistan Army Act 1952, be tried by the military’s legal system through the said Act.
Initially, the law was designed to bring charges against army personnel and people who were somehow associated with the armed forces. But in 1967 a new clause was inserted in the Pakistan Army Act, 1952, making this law applicable to civilians in certain circumstances.
The clause spells out the circumstances in which persons who are not otherwise subject to the Act would fall within its ambit; both the clauses are disjunctive. The insertion of the new clause had been reviewed by the Supreme Court of Pakistan in Brig (r) F B Ali and Others v The State (PLD 1975 SC 506) and interpreted as: “The intention of the framers of clause... is clearly that even civilians or persons who have never been, in any way, connected with the army should be made subject to it in certain circumstances gravely affecting the maintenance of discipline in the army.”
Consequently, civilians can be tried under the Act if they are accused of “seducing or attempting to seduce any person subject to the Act from his duty or allegiance to the government or have committed an offence under the Official Secrets Act, 1923”
Vis-a-vis the trial of civilians under the Pakistan Army Act, 1952, a military court is the legal institution responsible for hearing cases filed under this legislation. The Judge Advocate General (JAG) branch has administrative control over these military courts.
The standards of adjudication required for ensuring a fair trial are fully ensured and are in complete harmony with the fundamental rights guaranteed by the constitution. The apex court has endorsed in multiple judgments that military courts have guaranteed the right to a fair trial. Reference can be made to Brig (r) F B Ali and Others v The State (PLD 1975 SC 506) & Asif Mahmood v FOP and others (PLD 2005 Lhr 721).
Since then civilians have also been tried through military courts. The legality of trying civilians by military courts was challenged and the same was upheld by the Lahore High Court in Allah Rakha v District Magistrate, Sialkot & others (PLD 1968 Lah 1061).
Thereafter, in multiple cases the jurisdiction of military courts for trying civilians was upheld. See, for example, Sh Liaquat Hussain v FoP (PLD 1999 SC 504), Syed Tasawar Hussain Shah v Azad Government of AJ&K (PLD 2017 AJK HC 23), GOP through MoD v S H T Leelan (2004 SCMR 1761), and Syed Asghar Hussain Shah v The State (1982 PCrLJ 907). Moreover, in the most recent judgment by the Islamabad High Court, it was held that a person who was not an army officer “could be detained and or proceeded under the Pakistan Army Act, 1952 if he is accused of an offence under the Act.” The same is reported as Ali Rizwan Raja v FOP and others (PLD 2019 Isb 273).
The procedure for trial under the Army Act is based on existing and established legal processes such as the procedure provided under the CrPC for trial before sessions courts; rule of evidence is applicable in the same manner as for trial before civilian courts. Additionally, the trial before a military court is followed by an appeal before a court of appeal and further reviewed before the competent authority. Moreover, if there is concern regarding the convening of a court martial being malafide, without jurisdiction or coram non judice, it can be challenged before a high court and the Supreme Court of Pakistan (see Asif Mahmood v FOP and others; PLD 2005 Lhr 721).
In light of the interpretation of relevant clauses and upholding jurisdiction/legality of military courts to try civilians by the apex court, the federal government had exercised its power multiple times by recommending trials of civilians accused of offences injurious to the security of Pakistan.
The existing military courts are part of the country’s judicial system. Military courts are more effective in providing speedy justice without compromising the principles of a fair trial, especially in cases detrimental to the security of Pakistan.
The writer is an experienced lawyer with more than five years as an advocate of the high courts of Pakistan. She is also a member of the Islamabad Bar Council.
