Trial under military courts

Following the arrest of Imran Khan, on 9th May, 2023, all of us witnessed the manner whereby many historic structures of Pakistan fell into ruin. In the days that followed, as we all saw on national television, the Federal Government (as well as the Pakistan Army) seemed attracted to the idea of prosecuting persons who were involved in vandalizing the Corps Commander House, Lahore (also well known as ‘Jinnah House’), and attacks on GHQ Rawalpindi, Army Institute of Military History(AIMH, PAF Base Mianwali, Bannu Cantonment and Dir Scouts headquarters through Court Martial, under the Army Act, 1952. Soon thereafter, many contemporary lawyers, journalists (local as well as international), and, of course, seasoned politicians began raising apprehensions as to whether a trial conducted by Court Martial fulfils the due process requirements of a fair trial, as guaranteed by the Constitution. In this regard, under Article 10A of the Constitution, an obligation is placed upon the judicial system of Pakistan to ensure that every person is entitled to a right to fair trial and due process of law, in respect of the determination of civil and criminal rights thereof. In this regard, the superior courts of Pakistan, through numerous judicial pronouncements, have developed some basic qualifications for the same.
The fundamental underpinnings of a ‘fair trial’, as established by the superior courts of Pakistan, are, inter alia, as follows:
1) Notice of hearing, and a right to engage counsel;
2) Personal hearing;
3) Right to advance evidence;
4) Protection from double jeopardy and torture;
5) An appellate forum;
6) Judicial review;
Let us now attempt to evaluate the basic legal as well as procedural matrix of a trial, by Court Martial, on the touchstones of the constitutional guarantee of the ‘right to a fair trial’. Every person, subject to the Army Act (under section 2 thereof), is duly provided with a notice of hearing. Also, during a trial by Court Martial, the accused person is provided a ‘counsel’ of choice, in a manner like any other judicial proceeding. Importantly, every accused person, who undergoes a trial by Court Martial, is provided with a personal hearing, before Military Court. However, as the case may be, the decision, in respect of the alleged offence, is passed after examination of all records and hearing all concerned parties, in a manner similar to a trial by District Courts (Civil as well as Sessions Courts). The procedure laid down in Qanun-e-Shahadat Order, 1984. Moreover, under section 112 of the Army Act, all rules (save as otherwise provided in the Army Act) relating to the evidence before a Sessions court are applicable during trials before the Court Martial. Specifically, the provisions of the Code of Criminal Procedure, 1898, relating to, inter alia, recording of evidence, examination of witnesses and issuance of commissions are applicable in a Military Court, in a manner like a trial by a Sessions Judge. Put another way, trials by Court Martial are conducted, as closely as possible, per the orthodox practices of judicial proceedings, as set forth and established by the superior judiciary of Pakistan.
Furthermore, the Army Act, akin to all other civil as well as criminal proceedings, prohibits and provides due protection against anyone subject to the Army Act from being prosecuted twice for the same offence. Specifically, Pakistan Army Act categorically states that a person, subject to the Army Act, whether acquitted or convicted by Military Court, shall not be tried “subsequently for the same offence or on the same facts”. Similar to the doctrine of Res Judicata applicable in ordinary civil Law, persons prosecuted by Military Court are duly protected from being twice punished for the same offence in criminal cases. Every trial, under the Army Act, is required to be attended by an officer belonging to the department of Judge Advocate-General, Pakistan Army. Most importantly, as soon as the Court assembles to conduct a trial, the names of the members hearing the matter are read out to the accused person(s). In this regard, the accused person(s) reserves the right to object to any of the members, and upon acceptance of the same after recording reasons, the said member is substituted, per applicable law. As such, the law provides sufficient safeguards to prevent any miscarriage of justice, by providing a right to the accused person to ensure, for himself, an unbiased and impartial forum.
Lastly, but equally importantly, it is pertinent to highlight that the trials by the Military Court, under the Army Act, are conducted in accordance with our jurisprudential history, recorded through judgements rendered by superior courts of Pakistan. To this end, the same judgements, along with the principles of law contained therein are applied by members of the Court Martial in a trial, in accordance with the law. Furthermore, any party that is dissatisfied with the outcome of the Military Court, may agitate the same before the Court of Appeal and further through judicial review by the concerned High Court, followed by a subsequent appeal before the Supreme Court of Pakistan, thereby reverting to the ordinary judicial structure. It is also imperative to mention that several judicial and quasi-judicial forums, independent from the ordinary District courts (civil as well as criminal courts), have been created under the authority of various Acts, in a manner similar to that of the Army Act. Further, many such judicial and quasi-judicial forums have special procedural and legal necessities, owing to policy and strategic reasons, and due to other exigencies prevailing at such time, and the same ipso facto does not make such forums, in any manner, violative of the principle of due process of law. In view thereof, a conclusion may be reached that a trial conducted by a military court, in accordance with the law, does not curtail the rights guaranteed under the Constitution and same is not in any manner prejudicial, violative, or contrary to the principles of natural justice, due process of law, and the right to a fair trial.

Mohammad Mohkam Bajwa

The writer is a lawyer, based in Islamabad. His area of expertise includes civil as well as constitutional practice. The writer can be reached at mohkam
bajwa@icloud.com

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