In its third press release in a week, the Inter-Services Public Relations all but confirmed what had been churning in the rumour mill ever since mass protests broke out against former prime minister Imran Khan’s arrest on May 9 — that the “spoilers” involved in the recent attacks on military installations will be tried “under relevant laws of Pakistan, including the Pakistan Army Act and Official Secrets Act”.

Simply put, the military intends to try the “planners, instigators, abettors and perpetrators of these attacks” on the army’s head office, the General Headquarters, in Rawalpindi and vandalising the Lahore residence of a high-ranking military officer in military courts.

While the modalities of such an endeavour have not been made public yet, there has been much debate over the military courts’ jurisdiction to try civilians ever since they were given the green light to do so in 2015.

In a move described by PPP’s Senator Raza Rabbani as the “the last breath taken by Parliament”, Pakistan legalised military court trials of terror suspects for a period of two years in January 2015 during PML-N’s tenure, less than a month after terrorists killed 144 people, mostly children, at an Army Public School (APS) in Peshawar.

This “expansion of military jurisdiction over civilians was accomplished through the 21st Amendment to Pakistan’s Constitution and amendments to the Pakistan Army Act (PAA), 1952”, notes the International Commission of Jurists — a collection of 60 judges from around the world — which termed the move a “glaring surrender of human rights and fundamental freedoms”.

In doing so, the Parliament amended the PAA to add a fourth category of civilians that could be tried by military courts. These included persons involved in:

• Attacking military officers or installations
• Kidnapping for ransom
• Possessing, storing or transporting explosives, firearms, suicide
  jackets or other articles
• Using or designing vehicles for terrorist attacks
• Causing death or injury
• Possessing firearms designed for terrorist acts
• Acting in any way to “over-awe the state” or the general public
• Creating terror or insecurity in Pakistan
• Attempting to commit any of the above listed acts within or outside of Pakistan
• Providing or receiving funding for any of the above-listed acts; and
• Waging war against the state.

The amendment bill, however, made it clear that the persons facing these offences could only be prosecuted with the prior sanction of the federal government.

Meanwhile, the bill remained silent about Section 133 of the PAA, which deals with the right of appeal against the judgment of military court in the superior courts. Under the PAA, the civilian courts do not have the right to hear appeals against judgments awarded by the military courts. The superior judiciary can, however, review the sentences awarded by the military courts, as has been witnessed in several cases since.

Two years after the military courts were made functional, their powers were extended for another two years in 2017, while the PML-N was still in power, this time through the 23rd Amendment, which also expired on March 30, 2019. There has been no extension in the powers since.

In fact, at least two high courts — the Peshawar High Court and the Lahore High Court — have issued verdicts, with strong observations over the manner in which the trials were conducted by the military courts. The PHC on separate occasions also set aside the convictions of at least 270 people tried by the military courts on terrorism-related charges, terming the proceedings “based on malice of facts and law”.

The contentions

In 2020, the PHC set aside the convictions of another 200 persons, ruling that the military courts had violated the PAA and rules by not providing the accused with the counsel of choice.

Perhaps the more enlightening of the two PHC sentences is the 2018 verdict, which highlighted many of the issues plaguing the system through which the accused were being tried by the military courts.

The two-member bench, comprising Chief Justice Waqar Ahmad Seth and Justice Lal Jan Khattak, first questioned the competence of the defence counsel of the accused.

Describing the defence counsel as a “dummy”, the court held that the trials were a “complete prosecution show”, where the accused were “denied of their legal and fundamental right” to engage defence counsel of their choice to defend themselves.

Next, the court questioned how in all cases, the primary source of evidence was “confessional statements” by the accused. In its verdict, the PHC observed that manner prescribed in the law on confessions had been flouted in proceedings before military courts, and as a result, the statements could not be relied on as evidence to secure convictions.

Read more: The sun has set on Pakistan’s military courts — here’s why it should never rise again

The PHC verdict was also brought up in the ICJ’s 2019 brief about military courts, noting “It [court] found it suspicious that only one lawyer from Punjab was engaged by all accused persons, and that even though families of a number of convicts had engaged ‘costly and senior counsel’ to challenge their convictions in review before the high court, during their military trials they had allegedly ‘consented’ to be represented by the same defence counsel with only five or six years experience”.

The ICJ noted that in its 173-page verdict, the court also highlighted the link between enforced disappearances and proceedings before military courts, while indicating that “in many cases, military courts’ proceedings appeared to have been a ploy to give legal cover to the practice of enforced disappearances and secret detentions in internment centres”.

Finally, the PHC questioned the rehearsed nature of military courts’ proceedings; the arbitrariness in military courts’ sentencing; and the secrecy surrounding the entire process — from registration of criminal complaints against the accused to the final judgment against them.

The PHC order was subsequently challenged by the federal government before the Supreme Court, with the latter restraining the high court from issuing interlocutory orders, but maintaining that it could decide cases on merit.

Reviving military courts

With the PHC’s observations and orders already in the field, the government will find it difficult to back the military courts again. But does it need another constitutional amendment to give them life?

According to lawyer Abdul Moiz Jaferii, “they will attempt to interpret the Pakistan Army Act as covering it under the guise of it being a coordinated attack upon army installations”.

In fact, the Punjab caretaker government has already granted approval for taking action against individuals who were involved in the vandalism of public and private properties, as well as military installations, in accordance with the Pakistan Army Act.

This, too, is against the provisions of the amendments made to the PAA in 2015, which mandated the military courts to seek prior sanction from the federal government before putting a civilian to trial. “I really don’t see how the provincial government can authorise this,” Jaferii told Dawn.com. “Perhaps it is an extension of Article 245, which deals with aid of civil power requisition of the army for the provinces,” he reasoned.

For Jaferii, if civilians do get tried in military courts, “they would be afforded an unfair trial, which ought to be undone by any superior court within five minutes of hearing the process by which these civilians ended up in martial courts”. He also pointed towards the PHC’s verdicts, which termed the military courts’ procedures “unfair” and “overturned hundreds of terrorism convictions”.

Lawyer Benazir Jatoi agreed with Jaferii, stating that the move would “undermine civilian courts and threaten all institutions, not just the judiciary”.

Barrister Asad Rahim too pointed to “a long and wide-ranging consensus, going as far back as Dicey and beyond, that civilians cannot be tried by military tribunals as long as the courts are open and running.

“There have been some controversial exceptions: Justice Muhammad Munir cited necessity in Umar vs Crown in the wake of the Lahore riots of 1953, and a constitutional amendment brought in military courts in 2015 for a specific number of years. But the latter made it past the Supreme Court quite narrowly, with powerful dissents recorded by justices Jawwad S Khawaja and Asif Saeed Khosa, among others.

“Now, with even that amendment having expired, the precedent set by Sheikh Liaquat Hussain vs Federation from 1999 remains the law of the land. Authored by Chief Justice Ajmal Mian, the decision of the nine-member bench makes it clear that Article 245 mandates that the military act in aid of civil power, and not in displacement of it.

“This means that civilians cannot be tried by military tribunals. The judgment has attained finality; it was as late as 2015 that the Supreme Court returned a plea seeking to reconsider Liaquat.”

Lawyer Reema Omer tweeted that “military trials of civilians — no matter how horrific the allegations against them — are an affront to human rights and fundamental freedoms.”

Lawyer Mirza Moiz Baig termed the trial of civilians by military courts an aberration, adding that it is “generally considered to be an affront to human rights, especially the rights enshrined in the Constitution”.

“Now, the general principle is that military courts are only reserved for trials against members of the military or enemy combatants or ‘enemy aliens’. As far as acts committed by civilians are concerned, the civilian courts, which are the ordinary criminal courts, are ordinarily entrusted with the trial for such acts,” he explained.

“We saw in the 1990s when military courts were formed to try certain offenders, the Supreme Court had held such military courts to be unconstitutional, which is why in 2015, when in the aftermath of the APS incident, the political parties and the military establishment decided to create military courts or decided to entrust military courts with the trial of certain civilians, there was a constitutional amendment which was passed by the Parliament. That constitutional amendment also gave the military courts the power to try civilians for a very limited class of offences,” said Baig, pointing to the 21st and 23rd Amendments to the Constitution.

As for the recent attacks government and other sensitive installations, such attacks are also covered by the Pakistan Penal Code (PPC), Baig told Dawn.com.

Section 123-b of the PPC, for instance, deals with defiling or removing the national flag from a government building. Similarly, Section 132 of the PPC deals with the abetment of mutiny and other offences against the armed forces, and Section 146 of the PPC deals with rioting. Other provisions in the PPC also deal with other forms of unlawful assembly, said Baig.

“Given that the PPC expressly covers these acts and given that ordinary criminal courts may try these offences, the trial of civilians for these offences under the Army Act of 1952 may be violative of the Constitution, particularly Article 10-A, which deals with the right to fair trial,” said Baig, adding that any attempt to try civilians under a military court may be struck down by the superior courts.