Saturday, August 20, 2022

Jurisdictional overreach in Pakistan?

 A recent report in the Express Tribune of Pakistan raises questions about the potential for jurisdictional overreach under the military law of Pakistan. The issue arises in the context of an allegation that Shahbaz Gill, leader of opposition political party Pakistan Tehreek-e-Insaf, has incited mutiny in the Pakistani army. A member of the Prime Minister’s office has suggested that Mr Gill should be tried by court-martial for this offence. In this post I examine whether that is a serious prospect under Pakistani military law and, if so, what international law would have to say on the matter.

Under section 31 of the Pakistan Army Act 1952, it is an offence for “any person subject to this Act” to, inter alia, incite mutiny in the military forces of Pakistan, or attempt to seduce a member of those forces from his or her duty or allegiance to the Government of Pakistan. Pakistan is a state which, like many members of the Commonwealth, has derived its military law from a British root. In most such states, the limitation of jurisdiction to “any person subject to this Act” would put an end to any speculation as to whether Mr Gill could be tried by court-martial. He is not a member of the Pakistani armed forces and nor does it appear that he has any particular connection with those forces. Ordinarily, that would mean that he would not be subject to the Act. However, the jurisdictional provision which defines who is subject to the Pakistan Army Act (section 2) has been successively amended since the mid-1960s until as late as 2017, to expand the jurisdictional ambit of the Act to quite a surprising degree. Certain persons considered to be terrorists are subject to the Act (section 2(d)(iii) and (iv)) as well as anyone, not otherwise subject to the Act, who is accused of “seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government” (section 2(d)(i)).

In the article in the Express Tribune, Colonel Inamul Rahiem, a retired officer of Pakistan’s Judge Advocate General’s branch indicates that jurisdiction over a civilian cannot in fact be exercised in these circumstances consistently with the Constitution of Pakistan, and that there is Supreme Court authority to that effect. It would be surprising if that were not so, given Pakistan’s ratification of the International Covenant on Civil and Political Rights (ICCPR) in 2010.

The question of how the ICCPR and other international norms impact on the exercise of military jurisdiction is canvassed in the Principles Governing the Administration of Justice Through Military Tribunals, a soft law instrument which has evolved over the last 20 years under the auspices of the United Nations; the most recent consideration of the principles being a re-draft prepared at Yale University in 2018 by a group of experts including myself and a number of other contributors to this blog. The issue we are looking at here is dealt with in Principle 6:

“Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial.  Those circumstances only exist, where:

(a)         Such a trial is explicitly permitted or required by international humanitarian law;

(b)         The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or

(c)          The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b).”

This principle reflects the axiom that, in ordinary circumstances, only military personnel should be subject to military law. However, it also recognises that there are some very limited exceptions in which the application of military law to a civilian would be compatible with international norms. The exceptions permit a compatible reading of States Parties’ obligations under the ICCPR on the one hand, and the Geneva Conventions on the other. However, none of the exceptions appear to apply in the case of Mr Gill. It must be observed that any attempt to use military law as hammer to crack the “nut” of political opposition cannot fail to bring both the military jurisdiction and the State itself into disrepute.

I suggest that it might be timely for the Government of Pakistan to address the apparent incompatibility between section 2 of the Pakistan Army Act 1952, the Constitution of Pakistan and Pakistan’s international obligations.

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