Section 2D of the Pakistan Army Act 1956 as well as the F.B Ali Doctrine held multiple times by the Supreme Courts of Pakistan. I wrote about it in length which is easier to reproduce then to go about it again
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On 28th March 2023, Major General Syed Zafar Mehdi Askari, along with his family members, held a press conference regarding the military trial and sentencing of his son Hassan Askari. The case of Hassan Askari has witnessed local and international condemnation, as calls have grown against his incarceration, wherein he faces charges of sedition, treason as well as incitement towards mutiny. These accusations stemmed from Hassan writing several letters to the Chief of Army Staff as well as his top general staff regarding constant military interference in civilian affairs, and how this form of meddling was sure to create an economic and political crisis within the country.
He would soon discover that his audience was not interested in such facts, and found himself being transferred to a military court immediately after his arrest by the police, wherein he faced a trial that countless before him and many more after him were to face. While much has been written regarding the condition of his trial, many have found it shocking as well as horrifying as to what law allows for a civilian to be tried in military courts. This erosion of civilian authority in the name of military security stems from the early days of the country’s history.
The formation of military courts is founded in the Army Act 1952, which was meant to be military-oriented legislation during the time of its enactment with Section 2 of the said Act clearly stating that the law applied to military individuals. This changed under the regime of Field Marshal Ayub Khan as by 1966, both East and West Pakistan witnessed great political turbulence and there was fear within the military regime that compassionate civilian courts and likeminded judges would refuse to prosecute political recalcitrant, especially those in East Pakistan. As the Bengali political movement grew and the Awami League became the voice of the East wing, the Army Act was amended with the Defense Law Ordinance Act 1967 to include the infamous Subsection D to Section 2 which included non-military personnel who would attempt to incite any military or military employed personnel from their duty or provide information regarding the military to the enemy, shall no longer be tried under civilian courts as previously held, but by military courts.
This Act should have been immediately challenged and declared void by the courts of Pakistan and the sanctity of a civilian and her fundamental rights promptly safeguarded but unfortunately, history speaks differently as the Lahore High Court, in the important case
PLD 1968 Lah 1061,
Allah Rakha vs District Magistrate, was petitioned regarding the question of jurisdiction when Allah Rakha was immediately handed over to the custody of 406 Field Intelligence Unit, Sialkot and vanished for months. The Honourable Court dismissed the petition and held that the said Act was legal and the incarceration was as per the law of the land.
Sadly, the situation only deteriorated as the aforementioned amendment was used to arrest and hold countless individuals for summary trials, aggravating the situation within the two wings which reached its conclusion with East Pakistan becoming Bangladesh. The Superior Courts faced an opportunity to right this wrong and in
PLD 1975 SC 506, a bench comprised of 5 Supreme Court judges under the then Chief Justice Hamoodur Rahman faced a legal question being raised by a retired military officer Brigadier F.B. Ali, wherein he questioned the 1967 Ordinance and cautioned the Court that it should be declared void or interpreted extremely strictly so as ordinary civilians or retired personnel don’t find themselves facing the harassment and horror of a military trial.
The Court disagreed and instead declared the aforementioned ordinance to be vast in nature, including all, civilian or retired military, subject to it and thus formed the F.B. Ali Doctrine which is applicable to this day.
Rather than lessons being learned from this, the state doubled down as in 1977 the General Elections were held on the 7th of March and Zulfiqar Ali Bhutto won a landslide controversial victory which resulted in protests. As the crackdown intensified on 30th April 1977, the broken “Parliament” passed a massive amendment to Section 2 subsection D of the Army Act.
After much scholarly study, it is now a settled matter that by April 1977, power neither resided with Bhutto nor with the Pakistan National Alliance, and the said amendment allowed the military courts to have jurisdiction over multiple provisions of the Pakistan Penal Code, which not only included sedition or rioting but also theft, dacoity, disobedience to state, false evidence, murder, hurt of all forms, assault, kidnapping, rape, robbery, or any form of mischief that causes injury to the public property, along with multiple civil laws which ranged from treason to state or impeding of any state machinery.
A month after of the passing of this amendment, General Zia ul Haq would declare martial law and a crackdown would begin all over Pakistan which would result in individuals disappearing, and not being found to this day. As the situation aggravated, cases appeared before the courts of Pakistan regarding the legality of these acts. The first of these instances appeared in front of the Honourable Lahore High Court in
1980 PCRLJ 444, wherein the Petitioner sought bail as the military court had not followed proper procedure in his detention. The said High Court declared that they had no jurisdiction regarding military trials and since Section 133 of the Pakistan Army barred appeals of all kinds at that time, thus told the civilian detainee that he had no recourse and just like that, the courts of Pakistan declared that they could no longer protect the fundamental rights of the people of Pakistan in what was an illegal law, yet the law stayed and the same became a precedent as all High Courts of the country declared that they had no jurisdiction.
Time passed by, and military rule subsided but unfortunately, the dawn of civilian governance brought no hope as the Parliament, in an attempt not to disturb the uneasy peace between the institutions, refused to look into the law and only after much pressure did the 1992 Amendment pass that simply allowed for appeals to be filed, however the process was quite similar to the judge, jury, defense, prosecution and executioner being the same person.
The Superior Courts faced two great opportunities to right this wrong but only cemented the F.B Ali Doctrine in
2004 SCMR 1761 and
PLD 2009 SC 866. A most recent and harrowing example of this form of trial being declared legal is in
PLD 2021 Peshawar 135, which upheld the infamous doctrine.
The question regarding the legality of these provisions was raised in 1996 when the Supreme Court of Pakistan adjudged the case
PLD 1996 SC 632. A three-bench of the Supreme Court not only declared the process of trial under military courts to be a “fair trial,” but also held that the Detention Provisions of the Pakistan Army Act, despite being against fundamental rights, were exceptions since the Act itself was under the protection of the exception in Article 8. The Article states that laws inconsistent with fundamental rights were void, thus those provisions could not be set aside. When the detainee raised the issue of torture within custody, the Superior Court held that since the perpetrators denied such a claim, thus this controversy could not be investigated, and the victims can always file a complaint to the Field General Court Martial against the perpetrators.
Apart from a handful of exceptions, the Courts of Pakistan continued this doctrine, which was also cemented by the Federal Shariah Court as well in
1996 MLD 469.
In 2015 and 2017, Sections were amended again, as provisions of PPC were removed, but those of the Anti-Terror Act were added, which mostly covered the amended provisions and when the same is read with Actions to Aid in Civil Powers Act, there is hardly any room for any celebration whatsoever as military courts continue to function and continue to try civilians.
The Superior Courts faced two great opportunities to right this wrong but only cemented the F.B Ali Doctrine in
2004 SCMR 1761 and
PLD 2009 SC 866. A most recent and harrowing example of this form of trial being declared legal is in
PLD 2021 Peshawar 135, which upheld the infamous doctrine.
Decades have passed, and many individuals have found themselves detained in a fashion that is clearly a violation of their individual fundamental rights. As Pakistan faces severe criticism from the international community for its abysmal human rights record, there can be no doubt that the courts of Pakistan need to revisit the F.B Ali Doctrine and correct this historical wrong by highlighting that no matter what, a civilian can only be tried in a civilian court and uphold the fundamental right of an individual to be tried by his peers, among his peers, and in front of his peers and not in the darkness of basements.""""
https://thefridaytimes.com/03-May-2023/military-courts-continue-to-subject-civilians-to-injustice
Section 2 Subsection 1 Subsection D Clause 'i' and 'ii' brought jurisdiction of military courts onto civilians however the Supreme Court of Pakistan, in its landmark judgment in october delcared Section 2 Subsection D as Ultravires however detailed judgment has not been written yet but preliminary judgment declares the section void through the following words
"
It is hereby declared by Mr. Justice Ijaz ul
Ahsan, Mr. Justice Munib Akhtar, Mr.
Justice Sayyed Mazahar Ali Akbar Naqvi and
Mrs. Justice Ayesha A. Malik that clause (d)
of subsection (1) of Section 2 of the Pakistan
Army Act, 1952 (in both of its sub clauses (i)
& (ii)) and subsection (4) of Section 59 of the
said Act are ultra vires the Constitution and
of no legal effect"
It remains to be seen in the detailed judgment or subsequent interpretation of the judgment that whether this is applicable on retired military personnel.. Quite frankly they have good grounds to contest this order on the basis that a retired military personnel is a civilian and is protected by said order in the following para
""It is further declared that any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are and would be of no legal effect."
