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Civilian trials of army men

Published May 18, 2014 06:35am


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SHOULD military personnel be tried in civilian courts? It is a fraught question, but more for political reasons than legal ones. In legal terms, military personnel can be investigated, charged and tried by the civilian law-enforcement and judicial apparatus and it is the military that has to make the case for trial in a military court as opposed to a civilian one. For the most part, this is neither controversial nor very problematic. Crimes committed by one individual against another in their private capacity have little to do with the institutional interests of the military and so there is little reason why, say, theft or assault cannot be tried by the civilian apparatus. But, as the Supreme Court bench led by Justice Jawwad Khwaja has discovered in the case of the 35 missing persons taken away by the military from a Malakand detention centre, once institutional interests come into play the question of civilian jurisdiction is somehow always made controversial.

In the case of missing persons, there is an obvious and inherent conflict of interest were the military to try personnel accused of abducting and illegally detaining missing persons: the military personnel accused of such crimes would necessarily be acting on orders issued by the military itself based on an institutional approach to dealing with terrorism and militancy; therefore, the military would be in effect trying itself were military jurisdiction to be accepted — a violation of a basic tenet of justice. But there is further reason to hope that the Supreme Court will issue a definitive and clear-cut order on the matter of civilian vs. military jurisdiction. Each time there is the potential for embarrassment or worse for the military in a legal issue, the military seeks to take the matter out of the public domain and dump it in the military’s purview. There the matter is either allowed to languish — as has happened in the NLC scam involving three retired generals — or dealt with away from the gaze of the public to minimise the public-relations and image fallout.

Taken to the preposterous extreme, civilian jurisdiction has even been questioned by the defence team in Pervez Musharraf’s treason trial — a risible claim that seeks to subordinate the constitution to military law. But then none of this would be possible if civilian institutions were stronger and the military accepted civilian control. How to arrive at that promised land remains as vexing a question as ever. Should civilian institutions be strengthened first? Can they be strengthened in the presence of an overarching power like the military? Should the military’s unwillingness to subordinate itself to civilian control be chipped away at first? The missing persons case offers potential movement on both fronts: if the SC reiterates civilian supremacy, handling the matter responsibly in the civilian domain will boost civilian capacity and limit the army’s carte blanche.

Published in Dawn, May 18th, 2014

Comments (5) Closed

Last Word May 18, 2014 12:26pm

The illegal abduction by military from a detention centre clearly falls in jurisdiction of the civil courts and not army. However In India, if any dispute regarding trial of serving military personnel arises with the civil authorities, the concerned state govt refers the case to the central govt, who gives the permission to try the case in a civil court not below High or Supreme Court. The honourable court then give its ruling whether the case is fit to be tried by the military or civil court depending on the merits of the case. Since both Indian and Pakistan armies follow British Army Act, same set of laws should apply for both countries but this ambiguity should be clarified by the Apex Court of Pakistan as Pak military generally twists the laws to suit its own convenience.

Jalaluddin S. Hussain May 19, 2014 04:19am

@Last Word I agree. You are 100 per cent right.

Omer May 19, 2014 08:32am

@Last Word Nice suggestion, but may not fit with the preferences of some liberal

Last Word May 19, 2014 01:58pm

@Jalaluddin S. Hussain Let me tell you frankly that if such an incident had happened in India, some Generals and below would have been dismissed and even served with jail sentences. I have read even more bizarre cases involving top Pak army Generals, against whom cases were filed in civil courts after their retirement, but Pak military reinstated them, conducted court-martial as serving officers and set them free. As per army act, a retired personnel after superannuation cannot be reinstated but under which army act it was done and why civilian courts allowed it to happen is quite difficult to understand.

gary May 20, 2014 11:20am

All army should be under civilian control, and that includes Hamid Gul.