Jurisdiction over retirees

Lt Col (R) Inam-ul-Rahim

On Tuesday, the Supreme Court of Pakistan will hear argument in the case of retired Pakistani Army Lieutenant Colonel (and lawyer) Inam-ul-Rahim. The question presented is whether he is subject to military detention and trial. According to this account in Dawn,

The AG will also assist the court to the effect on the exercise of discretion conferred by Section 94 of the PAA [Pakistan Army Act], which empowers the presiding officer the discretion to decide whether a person accused of civil offence be tried under the criminal court or by the court martial when the nature of the offence falls within the jurisdiction of both the criminal court and the court martial.

This issue arises in the many military justice system (typically those with British legal roots) that sweep offenses against the general criminal law into the military courts as (misleadingly named) "service offenses." The question in such systems is often who decides which system will deal with these concurrent-jurisdiction offenses, according to what standards, and subject to what level of scrutiny, if any, on judicial review.

Is a retiree a member of the armed forces or a civilian for purposes of court-martial jurisdiction? Some countries regularly seek to prosecute retirees in courts-martial. Examples include Uganda and the United States. The constitutionality of the American claim of court-martial jurisdiction over retirees is pending before the U.S. District Court for the District of Columbia in Larrabee v. McPherson. (Disclosure: the Editor is co-counsel for the plaintiff in that case.)