Addressing a press conference at the National Press Club on November 8, the martyrs’ families appealed to the Supreme Court to review its decision and to restore the military courts.
In its verdict, a five-member bench of the Supreme Court of Pakistan (SCP) on October 23, this year declared the civilians trials 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, 2023. The court ruled that cases of 102 civilians, involved in the incidents of May 9 shall be conducted in civilian criminal courts.
As regards the 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. The 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 an 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 Pakistan Army Act is operational since 1952 and there have been many civilians who were tried under its Section 59. The Supreme Court of Pakistan has given several decisions in the light of these laws.
It is notable that if the Army Act does not apply, miscreantsof May 9 can be easily released due to suspicion of criminal procedure, as Pakistan’s Criminal Law is the weakest in the world.
On May 9, Parliament of Pakistan has clearly passed a resolution that the involved evildoers should be tried in military courts.
Pakistan Army Act is a law passed by the legislature and has been in force since inception, repeatedly validated by superior courts of Pakistan.
Supreme Court and high courts have often held various trials under Army Act are called valid trials. So, a five-member bench cannot overturn years of precedence given by larger and full court benches.
And 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.
A panoramic world view shall reveal that apart from 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, Kenya, Bahrain, Mexico, Philippines, Syria, Bangladesh, Iraq, Saudi Arabia, Syria, Jordan, Libya, Algeria, Venezuela and Zimbabwe have all enacted laws which hallow 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 i.e 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 for swift justice.
Militaries across the world do not use such powers sparingly, but use it as a deterrent only by being highly selective just to create the requisite effect.
However, the arrested people involved in the tragedy of May 9, 2023 had committed violence in the prohibited areas like GHQ Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, Inter-Services Intelligence (ISI) in Faisalabad, Hamza Camp, Bannu Camp and Gujranwala Camp. Question arises, should such attackers be tried in civilian courts, while they have committed the offences in military areas?
Even in the past, there was no effective prosecution in the civil courts against the persons involved in such cases.
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 legal domain, hence, the restoration also lies in same domain. Whereas, legal way forward as per 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 SCP.
Fundamental rights are important, but are always subservient to national security of a country. Courts, rights, legal questions are dependent upon maintaining the sovereignty of a nation which is guarded by its security questions—civil-the armed forces.
—The writer is freelance columnist based in Lahore.
views expressed are writer’s own.
