SC ultimate arbiter in military trials: experts

KARACHI: Military trials of civilians are not unprecedented in Pakistan, say legal experts. They also emphasise that, while there are limitations in the appeals process, the role of the Supreme Court is most important in reviewing military court sentences for civilians.

On Thursday, over 60 individuals were sentenced by a military court for their involvement in the May 9 riots. This follows the military court’s December 21 decision, where 25 civilians received sentences ranging from two to ten years of rigorous imprisonment for attacks on military facilities in 2023.

Given the international reaction to the military trials and sentences, the most natural question would be: how unprecedented is all this for us here in Pakistan? Not that much, says Supreme Court advocate Hafiz Ahsaan Ahmad Khokhar, who explains that military trials of civilians are not unique and have been going on since 1972.

And these, he says, are not without judicial oversights which “have been provided through an independent judicial mechanism by invoking the constitutional jurisdiction of high courts under Article 199 and in the Supreme Court of Pakistan under Article 185 and Article 188 of the constitution”.

The legality of civilian trials by military courts was considered properly for the first time by the Supreme Court in Brig (Rr) F B Ali’s case in which it was decided that a military court can try a civilian who is normally subject to the nation’s ordinary law if he commits a crime under the Official Secrets Act 1923 and the Pakistan Army Act. Since then, says Khokhar “the Supreme Court never declared that it was a violation of due process of law, or violation of fair trial...till the judgment issued by Supreme Court on October 23, 2023”.

Every political party has supported such trials at different times. Khokhar adds that: “it is important to note that no foreign government had ever made such remarks on these kinds of military trials under the Pakistan Army Act, 1952”.

According to Khokhar, the PTI is not any different in all this. In fact, he says, out of the 1875 civilians tried by military courts in Pakistan since 1972 on commission of offences under the Pakistan Army Act and the Official Secrets Act by the military courts, 180 were tried by the military courts from 2018 to 2022 in the PTI government tenure. “The convictions were regularly challenged in the superior courts of Pakistan, and most of the time these sentences had been confirmed by high courts and the Supreme Court”.

How exactly do these military court sentences proceed from here though? Advocate Khokhar explains that “the right of appeal is available to the accused under the Pakistan Army Act. and the sentencing can be challenged before the high court under Article 199 of the constitution and then before the Supreme Court under Article 185 as a matter of right and finally under Article 188 of the constitution in the form of a review”.

He also clarifies that the Supreme Court is the ultimate arbitrator in the constitutional and judicial system of Pakistan, and the matter regarding trial of civilians in military courts is still pending in the Supreme Court and even the sentences announced recently by the military courts “will be subject to the final decision of the Supreme Court”.

Barrister Rida Hosain further elaborates. According to her “one of the main criticisms of the military courts is the absence of an independent right to appeal. Civilians convicted and sentenced by military courts cannot appeal to the civilian courts. A right to appeal lies to a court of appeal consisting of military officials. This is not an independent or meaningful appeal.”

But what about the high courts and the Supreme Court? Hosain says that, yes, “the high courts and the Supreme Court can review decisions handed down by military courts on limited grounds but the scope of the ‘review’ is far more limited than an ordinary appeal. The civilian courts can intervene on limited grounds such as mala fide, lack of jurisdiction, and coram non judice”.

Barrister Ali Tahir stresses at the outset that, according to him, “these trials are unconstitutional”. Moving to the process that is followed -- or can be followed -- once civilians are sentenced by military courts, Tahir points out: “First, during the Supreme Court’s hearings on military trials, the attorney general was repeatedly asked if any right of appeal was being granted to the convicted individuals. To date, no response has been provided. There is no independent right of appeal currently available. Under Section 133 of the Army Act, appeals are to be made to a Court of Appeals, which may consist of either the chief of army staff or an officer designated by them. The rules and regulations governing these appeals are outlined, but their public accessibility is limited”.

When an appeal is made to the army chief or their designee, the remaining legal avenues are twofold, says Tahir: “one is to approach the high court under Article 199 of the constitution, and the other is to wait for the Supreme Court’s decision on the constitutional status of military courts”.

Essentially, for now, “the immediate course of action for those affected is to file an appeal with the army chief and subsequently approach the high court under Article 199”, says Tahir. However, he says that high courts are likely to refrain from taking any substantive action “until the Supreme Court issues a ruling on the appeal challenging the constitutional bench’s decision that declared military courts unconstitutional”.