Civil-military jurisdictions

[ABDUL JABBAR KATIAR]

By Najam Sethi

The question of the jurisdiction of civilian courts over military matters is now firmly lodged in the public imagination. In the last few years, hundreds of Baloch nationalists and alleged secessionists have "disappeared" into the black hole of the military's various intelligence outfits. Attempts by the Supreme Court to extract them from the clutches of the agencies have met with limited success. But the recent custodial deaths of four alleged terrorists facing court martial for attacks on the army has made front page news and compelled the SC and Peshawar High Court to take notice.

Part of the problem is related to the law of civilian jurisdiction and part of it has to do with the long-standing and unaccountable power of the military. But the major political parties are now contesting the military's political outreach. So it is time to also argue for a relevant change in the law in order to facilitate the application of fundamental rights.

The laws in question are the various Army, Air Force and Navy Acts of 1952 etc., and articles 199 (3) and 184 (3) of the constitution. Article 199 (3) says: "An order shall not be made [by the High Court] under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law." Article 184 (3) says: "Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

A combined reading of such Acts and Constitutional provisions has served to restrict the jurisdiction of the high courts in matters pertaining to the application of sections of the military-related Acts, including denial of Habeas Corpus, to civilians even in peace time and in "non-disturbed" or special areas. Consequently, proceedings of courts-martial and appeals cannot be challenged in the high courts of Pakistan. Judges Advocate-General of the military are always uniformed. And the SC's jurisdiction under 184 (3) is limited to matters that are both of "public importance" and also related to fundamental rights.

The various military Acts are inherited from the colonial era. The irony is that whereas in the UK and Europe such laws have since been amended to enable civilian jurisdiction over military matters, the opposite has been happening in Pakistan during various military regimes. For example, there are no standing military courts in countries like Denmark, Germany, Austria, Holland etc. In Spain and Latin America the military courts cannot intervene in political matters. In the UK, military appeal tribunals are headed by civilian judges-advocate with experience in practicing law and further appeals lie with the High Court or the Supreme Court of UK. Even in neighbouring India, civilians subject to military law may appeal in the high courts of the states. But not in Pakistan where the high courts have no jurisdiction to accept civilian petitions against military court judgments even in peacetime.

Indeed, General Pervez Musharraf went an extra mile to beef up the Army Act in November 2007 by inserting various clauses in section 2(1)(d), including some related to the "security of Pakistan" and "ideology of Pakistan", etc., whereby the military was empowered to detain and summarily convict any civilian on any pretext even in non-martial law times. Fortunately, after the judges were restored in March 2009, the SC in the famous "Judges Case" struck down most Musharraf-related legislation after November 3, 2007, including draconian amendments in the Army Act.

The SC is hearing three petitions that have a bearing on the subject. The first refers to a case in which the DGISI and COAS accept having paid off politicians to determine the course of a general election in 1990. The second relates to disappearances of civilians in Balochistan and the third to deaths of civilians in military custody. If the SC can blithely accept the military's deposition in Memogate as a matter of "public importance" by making "national security" a fundamental right, why can't it, by the same yardstick, amend or strike down articles 199 (3) and 184 (3) of the constitution to make military law subservient to civilian law and also abolish the ISI's internal political wing as a transgression of civilian supremacy in a constitutional democracy? All the transitional populist interventions of Chief Justice Iftikhar Chaudhry to date will be dwarfed in comparison to such an abiding historic legacy for constitutional supremacy.