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| What are military courts and how do they process cases against civilians? |
"More than a year and a half has passed since my father was sentenced by the military court, but the review appeal against this decision has not been scheduled for hearing yet."
These are the words of Talia Khattak, daughter of social activist Idris Khattak, whose father was sentenced to 14 years in prison by a military court in December 2021 for providing ground intelligence related to Dorn attacks.
Idris Khattak is not the only civilian to be sentenced by a military court. Dozens of civilians have been sentenced over the past few years in various cases under military courts in Pakistan.
However, in recent days, after the events of May 9, the federal government has approved the trial of the accused in military courts. In such a case, the question is important is how a trial is conducted against a civilian in a military court and what problems are faced by their lawyers.
Talia Khattak told the BBC that the appeal she filed against the military court's decision was not accompanied by a court decision as she said she was not provided with a copy of the court decision.
Talia Khattak says that her lawyer was shown the charge sheet of Idris Khattak by the Prosecution Branch officials last month.
He claimed that he has been given a message by his close relatives and friends not to push the case of his father Idris Khattak too much and to 'keep quiet and if not, Idris Khattak may face difficulties. are.'
Talia Khattak said that after the arrest of her father, her family members are facing severe financial problems as he was the sole breadwinner of the family.
He said that his father is currently in Adiala Jail where he is kept in C class. It should be noted that those convicted by military courts are given C-class in prison.
He said that his father is more than 60 years old and according to him, he is made to work in a factory inside Adiala Jail.
How are civilian cases referred to military courts?
It should be noted that if any person is alleged to have issued any statement or speech against the command of the army or incited subordinates of the army to rebel against his command or to have given sensitive information relating to the army to a foreigner and Or if the army is incited to take over power to overthrow the democratic government, the case against that person is sent to a military court.
Pakistan's Military Act also has its procedure.
Colonel Retired Inamul Rahim, a lawyer who pursues the cases of forcibly disappeared persons, says that in principle, if a case is registered against a civilian, the Judge Advocate General of the Army, i.e. the representative of the Jag Branch, is accused by the Sessions Judge. Apply for extradition.
He said that if this action is challenged by the accused party in the court, then the session judge can refer the matter to the federal government and after getting approval from the federal government, the session judge hands over the accused to the army.
He said that the parliament had passed a resolution regarding the trial of those responsible for the November incident in military courts, after which the federal government approved sending the case of these persons to military courts.
Therefore, in the cases of the persons who were sent to the military courts, the learned session judge did not contact the federal government regarding their cases.
Colonel Retired Inamul Rahim said that once the case of a civilian goes to a military court, an officer of the prosecution branch of the army collects all the evidence against the accused, and the record of all the evidence is provided to the accused.
He said that after 24 hours of providing the record of evidence to the accused, he is produced in the special court set up to hear the case.
This special court consists of three members and the head of the three members is called the president who is an officer of the rank of lieutenant colonel. He said that if there is any important case, then the representative of the Jag branch is also included in this special court.
After the accused is charged, he is given time to testify, which is a maximum of seven days.
After being charged, the accused has the right to cross-examine the evidence or witnesses presented by the prosecution himself or through his counsel. Apart from this, the accused has the right to present any witness or documents in his defense.
After completing the proceedings from both sides within seven days, this three-member bench will formulate its opinion and send it to the convening authority and this authority will be an officer of the rank of Brigadier or Major General.
Any decision based on the opinion of this three-member bench will not be told in the open court, but the unit in which the accused will be in custody will be informed about the punishment.
After being informed of the sentence, the offender is sent to jail and the offender has the right to file an appeal against the sentence within forty days.
In case an appeal is filed, a court is established to hear the appeal of the criminal, which is called the Court of Appeal, and this court also pronounces a decision on the appeal of the criminal within a week.
Colonel Retired Inamul Rahim said that if the criminal's request for review is rejected by the Court of Appeal, then the criminal has the right to file an appeal against the decision of the military court in the High Court.
He said that if High KoIf the writ also upholds the decision of the military court, then the offender has the right to challenge the decision of the High Court in the Supreme Court.
What problems do lawyers face in military courts?
Iman Mazari, a lawyer who has prosecuted several cases in military courts, says that during a civilian court-martial trial, the accused's lawyer is not given access to documents that the prosecution has access to.
He said that it has happened in many cases that if the military court has given a decision in a case, then the copy of the decision is either not available or even if it is available, the time to appeal against the decision has passed.
Iman Mazari said that since the proceedings in the military courts are governed by the Military Act, many lawyers do not even have a copy of the Act which they can read to defend their client.
He said that in many cases, lawyers are unable to defend their clients due to a lack of copies of the Army Act.
He said that the Supreme Court also does not have a copy of the Army Act, which has been openly expressed by several judges of the Supreme Court in the open court.
He said that the difference between ordinary courts and military courts is that in civilian courts any person is allowed to go, while in military courts only the accused and his lawyer are allowed to go if any witness is called. It is allowed.
Iman Mazari said that the military officers who conduct judicial proceedings in military courts do not have legal training, nor do they have much knowledge about the law of testimony and other laws, while the judges and prosecutors working in civil courts have the law. By studying and getting legal training, they reach this position.
He said that although military courts have been established under the constitution, the Supreme Court has said in its judgments that a civilian can be tried in military courts in extremely unavoidable circumstances.
The BBC has also tried to contact the Inter-Services Public Relations (ISPR) of the Pakistan Army regarding the processing of cases against civilians in military courts and the difficulties encountered during it, but so far they have not responded. No response has been given.
It should be noted that an application has been filed in the Supreme Court against former Prime Minister Imran Khan, former Army Chief General Qamar Javed Bajwa, and former ISI Chief Lt. Gen. Faiz Hameed for court-martialling 29 civilians during the PTI regime.
In this petition, it is requested to initiate criminal proceedings against Imran Khan, former Army Chief General Bajwa, and Lt General Faiz Hameed for violating the rights of civilians. The petition pleaded that out of the 29 persons, only five persons were allowed access to lawyers. The five persons who were granted access to lawyers include social activist Idris Khattak.
It has been requested in the petition that the court should declare that Imran Khan, General Retired Qamar Javed Bajwa, and Lt General Retired Faiz Hameed exceeded their powers and these three persons have abducted citizens against the law, so legal action should be taken against them.