Members of the armed forces and, occasionally, civilians are subject to the unique legal system known as military justice. Military tribunals have long been utilized to decide cases involving civilians in many nations and during periods such as the First and Second World Wars. The ancient and medieval eras, post-colonial eras, and contemporary eras are a few examples.

Civilians are occasionally and under special circumstances subject to military laws in a number of countries, including Pakistan, Argentina, Israel, Turkey, Thailand, China, Indonesia, Kuwait, Sri Lanka, Mali, Lebanon, Malaysia, Russia, Iran, India, Cuba, Djibouti, Eritrea, Kenya, Bahrain, Chile, Peru, Mexico, Philippines, Syria, Yemen, Bangladesh, Iraq, and Saudi Arabia.

However, these nations may have rather distinct actual legal systems and procedures as to Pakistan. So the phenomena of military trials of civilians are not unique with reference to Pakistan when particularly the judicial oversights have also been provided against these sentences through the constitutional jurisdiction of the High Courts and the Supreme Court of Pakistan.

Military trials of civilians in Pakistan are constitutionally sanctioned under the Pakistan Army Act and amendments since 1967.

The first laws to establish military tribunals to discipline Pakistani military personnel were the Pakistan Army Act of 1952, the Pakistan Air Force Act of 1953, and the Pakistan Navy Ordinance of 1961. Nonetheless, there are some clauses and situations in which civilians are also covered by the Military Act. The Defence Services Laws Amendment Ordinance, 1967 (3 of 1967) made the first changes to Sections 2[(d)(1) and 2(d)(2) of the Pakistan Army Act and Official Secrets Act 1923.

Further,  those who were not otherwise covered by this Act fell under the purview of military laws because they were civilians and were accused of attempting to deceive someone covered by this Act out of his or her duty or loyalty to the government or of committing an offence under the Official Secrets Act, 1923, in relation to any defence, arsenal, naval, military, or air force establishment or station, ship, or aircraft, or in any other way pertaining to the naval, military, or air force affairs of Pakistan.

However, civilians can only be tried by federal government order under the Army Act of 1952, and the standard CRPC and Qanone Shadat procedures is rigorously followed by military courts.

In “Brig (Retd) F.B. Ali’s case PLD 1975 SC 506,” the Apex Court for the first time thoroughly considered the legality and constitutionality of civilian trials by military courts. It came to the conclusion that a civilian who is normally subject to the nation’s ordinary law may be tried by a military court if he commits a crime under the Official Secrets Act 1923 and the Pakistan Army Act.

The Supreme Court carefully considered the constitutionality of Ordinance No. 3 of 1967 and the amendments made to the Pakistan Army Act in the aforementioned ruling, taking into account the fundamental rights protected by our Constitution, specifically the 1973 Constitution of the Islamic Republic of Pakistan and never declared that it was violation of due process of law, or violation of fair trial but declared that it is not violation of due process of law or the concept of fair trial or violation of any fundamental rights granted under 1973 Constitution.

It is also important that in the case of Mushtaq Ahmad V/S Secretary Ministry of Defence reported as PLD 2007 SC 405, the Supreme Court of Pakistan upheld the law established in the “F.B. Ali’s” case of 1975, holding that if a civilian is found guilty of seducing or attempting to seduce a member of the Pakistani Military Force from his allegiance to the government or committed the violation of Official Secrets Act 1923, he will not be punished under section 131 of the Pakistan Penal Code but rather under the provisions of the Pakistan Army Act 1952 because of the provisions of sections 59(4) of the Pakistan Army Act and 71(3) of the Pakistan Air Force Act, as well as Section 59 subsection 4 of the Pakistan Army Act 1952, which is a deeming provision and a non-obstante clause is applied and the trial procedure specified by the Act of 1923 is superseded.

Supreme Court judgments consistently uphold the legality of civilian trials in military courts, emphasizing due process and fair trial.

It is also important that the 21st Constitutional Amendment also reiterated in addition to the amendment made in 1967 in the Pakistan Army Act 1952 the holding of military trials of civilians on violation of military laws was unanimously approved by the Parliament of Pakistan in 2015, after the Army Public School incident and certain other laws included the “Protection of Pakistan Act 2014,” “Pakistan Army Act 1952,” “Pakistan Air Force Act 1953,” and “Pakistan Navy Ordinance 1961 were also passed in order to exempt them from the application of Article 8 and the High Court’s ability to issue writs for any violations that, on the surface, appear to be inherent in the laws mentioned above.

The said amendment was challenged and the Supreme Court was presented with this argument. The Supreme Court held that “Pakistan Army (Amendment) Act, 2015” and the “21st Constitutional Amendment” were not constitutionally impermissible, according to the majority verdict of the Supreme Court of Pakistan, since they were approved by the Parliament, which had the power to do both within the bounds of the Constitution as per Article 239 of the Constitution.

The Supreme Court in 1995 Sahida Abbasi judgment and also ruled later in Said Zaman Khan v. Federation of Pakistan (2017 SCMR 1249) that although the crime of which the convict was accused was punishable under the ordinary law of the lands and triable by a Criminal Court, therefore constituting a “Civil Offense” as defined by subsection (3) of section 8 and section  59 (4)of Pakistan Army Act and liable to be tried by the FGCM due to these provisions of that statute, even though the accused was a civilian, he participated in attacks against the Pakistan Army.

The Supreme Court explicitly declared that the Pakistan Army Act may apply to him even if he was a civilian due to his actions and the same judgment is in the field. Furthermore, it is undeniable that everyone has the fundamental right to a fair trial under Article 10-A of the 1973 Constitution. The Supreme Court addressed this issue in its 2015 ruling on the 21st constitutional amendment and never held that civilian trials in military courts violated Article 10-A of the Constitution.

This is a fact that in recent political governments including the last in tenure of PTI, civilians were tried under the military laws by the military courts, and their individual convictions were later on challenged before the Superior courts as per practice and laws, and some are still pending before the superior courts but neither the Parliament never revoked 1967 amendments nor Supreme Court struck down till October 2023.

It is also important that the 23^rd October judgment of the Supreme Court regarding the 1967 amendments in the Pakistan Army Act was suspended by the appellate bench of the Supreme Court of Pakistan in December 2023, which means the amendments made in 1967 in the Pakistan Army Act are intact and in the field.

It is important that the trial of civilians by military courts on violation of military laws had never been the subject of any discussion or controversy since 1975 in Pakistan, but simultaneously every political party including their heads supported such trials in military courts on different occasions. It is also important that no foreign government had ever put such remarks on such military trials under Pakistan Army Act 1952.

Critics’ claims of lack of transparency in military trials are countered by constitutional appeal rights and judicial scrutiny.

It is also important that after the judgment of Field General Court Martial, the right of appeal is available to the accused under the Pakistan Army Act, and thereafter being aggrieved the accused can challenge the sentence before the High Court under Article 199 of the Constitution and then before Supreme Court under Article 185 as a matter of right and finally under Article 188 of the Constitution in form of Review.

Although civilians can be tried in Pakistan under military laws being necessary legal provisions are in place, and the Superior Courts have up to this point endorsed these statutory provisions in various judgments but still, there is an urgent need to concentrate on thorough judicial reforms to strengthen the regular criminal justice system.

The present statements by the USA, European Union, and Foreign office of the UK regarding holding of military trials of civilians, particularly the announcement of sentences of 25 persons were made in pursuance of a Supreme Court order dated 13^th December 2024 uncalled for and seem to be only for public optics and also meddling into the internal affairs of Pakistan when particularly the laws and Constitution of Pakistan allows such trials since 1967.

Thus the points raised by them for Pakistan regarding the implementation of international convention, lack of transparency, or shortcomings in fair trial and due process of law in military courts trials have no legal force when these points were thoroughly examined and as well addressed by the Supreme Court of Pakistan in its 1975 judgment and thereafter repeatedly held in various judgments that the trial of civilians on the violation or commission of military laws including Pakistan Military Act 1952 and Official Secrets Act 1923 by the Military Courts was neither violation of any fundamental rights, nor against due process of law nor discriminatory, nor violation of any transparency and resultantly not against the concept of fair trial.

It is also important that the Supreme Court is the ultimate arbitrator in the Constitutional and judicial system of Pakistan, and the matter regarding the trial of civilians by the military courts is still pending in the Supreme Court and it is expected that the proceedings will be concluded probably in January 2025 and a final decision will be announced by the Supreme Court by considering all constitutional and legal aspects thereafter, which will be binding on all state institutions.

Ongoing Supreme Court proceedings on military trials underline the evolving legal framework and potential reforms in Pakistan’s justice system.

so it is very immature to make such statements at this stage when such a matter is still pending in the Supreme Court and waiting for a final verdict on this very important constitutional and legal matter and even the sentences announced recently by military courts will also be subject to the final decision of Supreme Court.

Disclaimer: The opinions expressed in this article are solely those of the author. They do not represent the views, beliefs, or policies of the Stratheia.