The decision by Pakistan Army as well as the civilian government to try civilians allegedly involved in the May 9 riots under military laws has ignited concerns among human rights watchdogs, raising questions about the protection of fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) and international law. The decision to initiate trials against the “perpetrators, conspirators, and facilitators” under military laws was announced after a meeting of the National Security Committee chaired by Prime Minister Shehbaz Sharif.
Across the world, particularly, during the First and Second World Wars, military courts have been used to hold trials of civilians for a very long time. There are several countries including Pakistan and India, where civilians are occasionally and in special circumstances are subjected to military laws. In Pakistan, under the Pakistan Army Act-1952, Pakistan Air Force Act-1953 and Pakistan Navy Ordinance-1961, military tribunals are established for the purpose of punishing military personnel. Situations, the Military Act also applies to civilians.
Persons subject to the act are elaborated in Section 2(1)(d) of the Army Act while its 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 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.” On 8 May 2023, former prime minister Imran Khan was arrested, and his supporters held nationwide protests, during which there have been incidents of violence. Some of the protesters ‘breached the military headquarters while others set fire to a military commander’s official residence’. At least eight people lost their lives and resultantly, thousands including political leaders have been arrested as per police reports.
On May 20, Army Chief Gen. Asim Munir while addressing officers in Lahore Garrison stated that the “legal process of trial against planners, instigators, abettors and perpetrators involved in the 9 May riots has commenced under Pakistan Army Act and Official Secret Act.” Afterwards, the 81st Formation Commanders Conference presided over by General Syed Asim Munir and attended by top military brass reiterated its firm resolve that “desecrators of Shuhada Monuments, Jinnah House [corps commander’s house in Lahore] and attackers of military installations would certainly be brought to justice speedily under the Pakistan Army Act and Official Secrets Act which are the derivatives of the Constitution of Pakistan”.
The decision was later endorsed by the federal cabinet and the National Security Committee. On May 24, Lahore-based Anti-Terrorism Court Judge Abher Gul Khan ordered the Camp Jail superintendent to hand over 16 people, including a former Punjab Assembly member (MPA) to the army for initiating trials against them in the military courts. They are accused of attacking the Lahore corps commander’s residence or Jinnah House during the May 9 protests that erupted after Imran Khan’s arrest. The ATC judge passed the order on an application which, containing a list of the 16 accused states, “According to the initial investigation, the following accused persons are prime facie found involved with the commission of offences under the provisions of Official Secrets Act, 1923 read with Section 2(1)(d) and 59(4) of the Pakistan Army Act 1952.”
Military justice is a distinct legal system that applies to members of defence forces and, in some cases, civilians. The opposers of military courts for civilians believe that it undermines the civil judicial system besides raising concerns about due process, transparency, and accountability, and resulting in human rights violations. On the other side, its supporters are of the view that military courts must be used to swiftly prosecute offences connected to terrorism for the purpose of national security. In the prevailing circumstances, the question is: when ordinary criminal laws are in place to prosecute vandalism and destruction of public property, trying civilians under military laws is not a clear violation of the Constitution and international law?
Established in 1952, the Pakistan Army Act serves as the legal framework for the trial of military personnel according to the Army’s own legal code. However, the Official Secrets Act is a remnant of the colonial era. The latter is employed to deal with cases of unauthorized disclosure of information and espionage. In 1966, an amendment was made to the act under the rule of military leader Ayub Khan. Following the amendment, civilians accused of inciting mutiny within the rank and file through written and verbal material could be tried under the act.
In 2015-16, the ambit of the Army Act was further broadened through an amendment. It then included individuals claiming or known to belong to “any terrorist group or organization using the name of religion or a sect” and engaging in attacks on civilians or military institutions, establishments, or personnel. Those civilians who are accused of targeting and attacking military installations may also be tried in military courts. And those civilians accused of sharing official state secrets with the enemy may also be tried under military laws.
Various human rights defenders allege rights abuses under the guise of military trials as the right to a fair trial, guaranteed by the Constitution, is severely undermined by the unjustified move. The opposers also think that military trials lack the necessary safeguards and transparency. Resultantly, defendants are exposed to the risk of potential miscarriages of justice.
The significant concern regarding court-martialling civilians is the fairness of these trials. Fairness is a matter of significant concern, given the lack of transparency, procedural issues, limited access to evidence, and difficulties in mounting a defence. Upholding the principles of justice, due process, and the protection of civil liberties remains essential to ensure fair and impartial trials. It is crucial to recognize that one cannot simultaneously act as the plaintiff, prosecutor, and judge in a single case. Such a situation would compromise the integrity of the legal process and raise doubts about the impartiality and fairness of the final judgment.
Though backed by ratifications from the National Security Committee and federal cabinet, the army decision of court-martialling civilians, not only violates the country’s Constitution but also contradicts its international obligations. Article 10-A of the Constitution guarantees individuals the right to a fair trial and due process in the determination of their civil rights, obligations, or any criminal charges against them. Furthermore, Pakistan is a signatory to the Universal Declaration of Human Rights and various international treaties on human rights, including the International Covenant on Civil and Political Rights. And Article 14 of this Covenant stipulates that all individuals should be treated equally before courts and tribunals, and everyone is entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.
The critics believe that the Pakistan government should immediately transfer civilians announced to be tried under military laws to the civilian justice system. They believe that trying civilians before military courts violates Pakistan’s obligations under international human rights law. They also believe that this move fails to ensure the due process and fair trial rights of criminal suspects. Patricia Gossman, associate Asia director at Human Rights Watch said, “The Pakistani government has a responsibility to prosecute those committing violence, but only in independent and impartial civilian courts. Pakistan’s military courts, which use secret procedures that deny due process rights, should not be used to prosecute civilians, even for crimes against the military.”
Likewise, the Human Rights Committee, the international expert body authorized to monitor compliance with the ICCPR, says the “trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned,” and that “trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where … regular civilian courts are unable to undertake the trials.” As the controversial move to prosecute civilians under military laws is alarming and contrary to international law, it should be struck down immediately.
Referring to the Pakistani military, Dinushika Dissanayake, Amnesty International’s deputy regional director for South Asia said, “This is purely an intimidation tactic designed to crack down on dissent by exercising fear of an institution that has never been held to account for its overreach.” The watchdog says, “Amnesty International has documented a catalogue of human rights violations stemming from trying civilians in military courts in Pakistan, including flagrant disregard for due process, lack of transparency, coerced confessions, and executions after grossly unfair trials.”
Also, Pakistan’s independent Human Rights Commission of Pakistan (HRCP) says it strongly opposes using the law to try civilians. “While those responsible for arson and damaging public and private property during the recent protests should be held to account, they remain entitled to due process” it believes. Meanwhile, the PTI moved the Supreme Court (SC) against the trial of civilians under military laws. The petition pleaded with the court to adjudicate upon 22 questions requesting the court to enlighten if the trial of civilians under military law was in contravention of the law and the country’s obligations to the International Covenant on Civil and Political Rights (ICCPR).
However, there is a need to make strenuous efforts for holding fair military trials particularly where the accused are civilians and have been charged under military laws. The accused should have the right to legal representation of their choice, right to justice, and due process in the form of the right of statutory appeal as guaranteed under the Constitution. In an independent society, public trust in the justice system, the protection of individual rights and the international reputation of the country are among significant commitments that cannot be eroded. Therefore, Pakistan should essentially uphold its constitutional and international obligations to ensure a just and fair legal process for all its citizens.