Pakistan’s controversial Army Act: What is it, how does it work?

Pakistan’s government has said it will take action against Pakistan Tehreek-e-Insaf (PTI) supporters involved in damaging military buildings and installations last week under the Army Act and Official Secrets Act.

PTI supporters stormed the streets across the country last week following the arrest of the party chief and former Prime Minister Imran Khan. His supporters were seen damaging public and private properties, including the residence of a top military commander in Lahore and the gate of the army’s General Headquarters in Rawalpindi.

The army was called up by the government in the capital, Islamabad, as well as the Punjab and Khyber Pakhtunkhwa provinces following the deadly protests.

Thousands have been arrested, including top PTI leaders, and the government has repeatedly said it will take strict action against those involved in the riots.

The decision to try those involved under the Army Act was announced on Tuesday after a meeting of the National Security Committee chaired by Prime Minister Shehbaz Sharif.

What is the Army Act and who does it prosecute?

The Pakistan Army Act, which was brought into force in 1952, is used to put military personnel on trial under the military’s own legal code. In some provisions and cases, this law is also applicable to civilians.

The act was meant to prosecute army personnel and civilians attached with the military in some capacity.

In 1966, under the rule of military leader Ayub Khan, an amendment was made to the act whereby civilians accused of inciting mutiny within the rank and file through written and verbal material, could be tried under the act.

Civilians accused of sharing official state secrets with the enemy may also be tried in a military court as well as those civilians who are accused of targeting and attacking military installations.

How are trials carried out?

The court that hears cases brought under the act is called the Field General Court Martial. This military court functions under the supervision of the military’s legal directorate, also called the Judge Advocate General (JAG) branch.

The president of this court is a serving military officer, and the prosecution counsel is also a military officer.

Pakistan's NSC says it has decided to try violent protesters under the army act — as the army had proposed. It should note that it will be violating Pakistan's obligations under international human rights law.

— Madiha Afzal (@MadihaAfzal) May 16, 2023

Those tried in the court are given the right to have lawyers, and in case they cannot afford one, they can appoint military officers to represent them.

If convicted, defendants have the right to file an appeal within 40 days to an army court of appeal.

If, after going before the army court of appeal, defendants believe they have not received a fair trial or express dissatisfaction with the proceedings, they can subsequently go to higher courts.

What are the punishments?

Depending on the severity of the offence, the punishments can vary from two years to a life sentence, and even capital punishment.

Have any cases resulting from the protests been sent to a military court?

The government is compiling evidence, military courts have yet to be established and no case so far has been sent for a hearing.

Authority lies with the federal government to determine if a trial should take place through a civilian or a military court, according to retired army official Inam ul Rahiem, who was formerly attached with the military’s JAG branch.

“In case the government feels that civilian courts or the civilian judicial system is not performing its duties, it can send the cases to military court,” Rahiem told Al Jazeera.

Who has been tried under the Army Act?

Pakistan has had a history of cases being sent to military courts.

According to Rahiem, under the tenure of Khan as PM between August 2018 and April 2022, more than 20 civilians were tried under the law.

One of the convictions was that of human rights activist Idris Khattak, who was sentenced to 14 years in 2021 on charges of espionage. Khattak was convicted of providing sensitive information to a “foreign intelligence agency”.

In 2020, the Peshawar High Court rejected the convictions of nearly 200 people and ordered their release if they were not found guilty of any other crime. The individuals were allegedly members of banned groups and were accused of attacking civilians and the military.

The convicts were sentenced to either capital punishment or various prison terms.

What has the reaction been?

Rahiem said it is “never a good thing” for a military court to operate in civilian society.

“The fact that a civilian government itself requisitioned the military’s help to maintain peace, it does allow the army to have additional powers so that they can implement law and order,” he said.

The decision has been roundly condemned by human rights organisations within Pakistan and abroad. Amnesty International said trying civilians in military courts is contrary to international law.

“This is purely an intimidation tactic, designed to crack down on dissent by exercising fear of an institution that has never been held to account for its overreach,” Amnesty said in a statement. “… The right to a fair trial, guaranteed by Pakistan’s constitution, is severely undermined by this move and cannot be justified.”

The Human Rights Commission of Pakistan has also opposed the use of these laws to try civilians.

“While those responsible for arson and damaging public and private property during the recent protests should be held to account, they remain entitled to due process,” the group said.