Functioning of military courts
Military Courtsare functioning under Pakistan Army Act, and are an intrinsic part of the Judicial System of Pakistan. Military Courtsare convened as and when required by Commanding Officers at various echelons of the Military.Whereas,SpecialMilitary Courts are not an integral part of the routine functioning of the Military and were established as a response to dealing with situations which warrant an immediate re-enforcement of the existing legal framework through the ‘Doctrine of Necessity’. These were made part of and continued to function within the National Legal System after enacting certain amendments in the Constitution of Islamic Republic of Pakistan, 1973 and the Army Act. It is pertinent to mention that while the reasons and procedures for convening both the Courts vary, the basic composition and the adjudicative powers of both the courts remain the same.
The question of subjection of civilians under the Army Act, assumes great importance and at first glance can seem to exist at odds with the fundamental Rights safeguards entrenched in our Constitution.However, a deeper understanding soon reveals that the Army Act in General and the two kinds of Military Courtsin particular discussed above are designed around the concept of safeguarding the Fundamental Rights in line with any other Court of Law. Moreover, it needs to be clarified that only certain categories of civilians can be tried under the Army Act. This process is based on legal provisions as elaborated in the Army Act,and have been frequently specified through Military Courts since creation of Pakistan. In a case titled as District Bar Association, Rawalpindi & others Vs FoP& others (PLD 2015 SC 401) SCP upheld the jurisdiction of Military Courts to try and sentence the convicts of offences which are subject to Army Act as well as the FGCMs constituted under Army Act.
“……that the convicts in view of the offences for which they were accused, were subject to the Pakistan Army Act and the FGCMs constituted under the Act were vested with the jurisdiction to try convicts and sentence them, hence, the convictions and sentences awarded are not without jurisdiction……”
Supreme Court of Pakistan in Sheikh Liaqat Hussain case observed that the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 is not in consistent with the Constitution hence, establishment of Military Courts is not sustainable. However, it also upheld all the decisions of the Military Courts through this judgment.Military Courtsfollowa legal procedure scheme which safeguards rights of accused in accordance with the Constitutionof Pakistan and ensure fairness during all stages of trial. These include provision of grounds of arrest, Counsel access, Protection against double jeopardy, Provision of charge sheet, Provision of statement of evidence, right of hearing, Recording of Evidence, Right to appeal, Judicial Review and Right to file Mercy Petition. Moreo ver, International Court of Justice (ICJ) judgment dated 17 July 2019 in Kulbhushan Jadhav Case, wherein, no objection has been raised by the ICJ regarding any violation of natural principles of justice during the trial by FGCM. ICJ did not object the jurisdiction of FGCM but only showed concerns over procedural anomalies.Therationale behind the establishment of Military Courtsrests on the expedient/ fair process inherent to the Military Courts. Moreover, certain offences covered under the Official Secrets Act, are triable by Military Courts, therefore, the Military Courts are only exercising their jurisdiction as vested by the Law.Legal and procedural matrix of Military Courts and Sessions Courts reveal that both the said Courts are not ‘at odds’, in fact, civilians who are tried under the Army Act, by the MilitaryCourts, undergo a largely similar process in terms of law and procedure.Procedure followed by the Military Courts for framing of charge is parallel to the procedure provided in CrPC, thus both Military Courts and Sessions Court follow the same procedure for framing of charge.Trialsby the Military Courts, under the Army Act, are conducted in accordance with our jurisprudential history, recorded through judgments rendered by Superior Courts of Pakistan. To this end, such judgments, alongwith the principles of law contained therein, form the corpus of principles applied by members of the Military Courts during a trial. Furthermore, any party who feels aggrieved with decision of Military Courts, may prefer an appeal before theArmy Court of Appeals. It may further impugn the order of Army Court of Appeals through judicial review before the concerned High Court,as well as, an appeal before the Supreme Court of Pakistan, thereby reverting back to the ordinary judicial structure.
The prevailing misinterpretation of the Army Act and its Military justice system has led to considerable discontent amongst the masses. The fear of infringement of the basic Human rights and degradation of democracy has further exasperated the situation. However, with the basic conceptual understanding of the Army Act and its Military Justice system it would be easier to receive the rumoursspread indiscriminately over the social media with a more logical standpoint.
—The author, Advocate High Court, is a postgraduate in Law from University of Lahore, with 8 years standing at Bar. A regular practicing lawyer at High Courts of Pakistan. Mostly deals with Land Revenue, Civil and Constitutional matters as well as Legal Analysis on laws and current affairs.
