Question in Pakistan Supreme Court: where can soldiers be tried?

Justice Jawwad S. Khawaja

A crisis is brewing in Pakistan over whether soldiers may be tried in civil courts -- and whether the civil courts have any say in the matter. The case arises from the removal of 35 undeclared prisoners from a detention center in Malakand. (If the place name rings a bell, it may be because it figures in Winston Churchill's The Story of the Malakand Field Force: An Episode of Frontier War (1898).) According to this courtroom account in the Express Tribune:

The bench, headed by Justice Jawwad S. Khawaja, also asked the officials as to what should be the appropriate forum for such trial – if a criminal case could be registered against serving army officials. It also enquired whether further proceedings would be initiated in civil or military court.
During the hearing, [Khyber Pakhtunkwa]’s AG Latif Yousafzai informed the bench about the provincial administration’s decision to close the case against some army officials – including Naib Subedar Amanullah Baig. He said the case had been shifted to the army authorities for further investigation and any subsequent trial under the Pakistan Army Act 1952.  Citing reasons for closing the case, the AG said the matter fell under the concurrent jurisdiction and therefore the case was shifted to the military for further proceedings.

The bench, however, pointed out that the district coordination officer Malakand had stated that he transferred the case on the orders of the high-ups.

“The court will examine the matter about shifting of the case to a military court in the light of the Constitution and other legal provisions,” observed Justice Khawaja.

He said the Constitution gives supremacy to civilian courts. “However, if military authorities believe it is at their discretion to transfer a case from a civil court than the top court will examine the matter,” he added.

He said a similar question was raised in the case of a missing person Tasif Ali and Advocate Ibrahim Satti, appearing on behalf of the Military Intelligence (MI), had said that an FIR [First Information Report] could not be registered against serving army officials under Army Act 1952.

Interestingly, a former AGP, Muneer A Malik, had admitted that an FIR could be registered against any serving military official. However, in reply to a query of the bench, Deputy Attorney General (DAG) Waqas Dar on Wednesday said an FIR could not be registered against military officials.

Justice Khawaja reminded him that an FIR had also been registered. “Now the question is as to whether the tr[ia]l [of military personnel] can be initiated in a civil court or not,” he said, adding that although the issue could not be settled since 1856 the court was resolute now to decide it. The hearing will resume today (Thursday).