Live discussion with Farooq Adam Khan
Farooq Adam Khan is a leading Supreme Court lawyer based in Peshawar who has seen military trials both as an accused and as a Defence Counsel. He began his professional career in the military and was awarded the Sitara-e-Jurat in the 1965 war before he was tried for what is known in the history as the Attock conspiracy of 1973 – a plan to overthrow the then government by a group of middle-ranking army officers. His conviction in the case cut short his military career but it allowed him to train as a lawyer. A few years earlier, he also worked as the Prosecutor General of the National Accountability Bureau (NAB).
On February 21, 2012, Herald asked the former Prosecutor General to hold a live blog where people could pose their questions about military trials. Below is the unedited version of the discussion.
7:55 Comment From Ayesha Salmaan. Military courts for civilians have been declared as unconstitutional under a democratic rule – do you think there is any chance, given the uncertain nature of Pakistan that military courts could be used to try civilians under a democratic rule again?
8:07 Farooq Adam Khan. There appears to be a basic misunderstanding in using the words “military courts” to describe all courts functioning with military officers presiding. As correctly stated the establishment of military courts for trial of civilians charged with some specified offences have been held to be unconstitutional. These military courts had been set up by the Government of Pakistan as authorized by the Pakistan Armed Forces (Acting in aid of the Civil Power) Ordinance, 1998. Military courts have also been established whenever the civil democratic process was overthrown and Martial Law Regime was enforced.
However, whenever the civil dispensation is overthrown “military courts” have been normally set up under a notification/ordinance to do that which the SC [Supreme Court] had declared “unconstitutional”. The only real, legitimate and lawfully convened military courts are those which function under the Pakistan Army Act, and corresponding Navy and PAF Acts.
They have jurisdiction over those who serve in the Armed Forces only. However, in certain cases civilians can be brought into the ambit of the jurisdiction of military law.
The question of civilians being tried by military courts under “democratic rule” in the future is a question open to speculation due to the nature and course of the prevalent and non-predictability of the political circumstances in [the] country.
8:07 Comment From Najam. I remember reading somewhere that our constitution give right to fair trial to every citizen of the country, then why this army act, or some of its provisions, which are in direct conflict with fundamental rights guaranteed by the constitution still exist. Can’t our supreme court take suo moto on such matters?
8:14 Farooq Adam Khan. The Army Act is [a] necessary document. Every civilized nation in the world [sh]ould have laws governing the Armed Forces. This is unquestionably an absolute necessity and cannot be dispensed with. Even [in] the 1973 Constitution there is [a] special provision for laws relating to members of [the] Armed Forces for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline.
8:14 Comment From Hamza. What role, if any have the military trials of civilians played in undermining civilian supremacy in Pakistan?
8:18 Farooq Adam Khan. Civilians do not come under the Army Act for the purposes of trial or any other process unless they are brought within the ambit of the jurisdiction of the Army Act.
8:18 Comment From Maleeha. Reading your short CV at the Herald page, I was wondering if it is all right with you after all these years to discuss the details of the Attock Consipracy Case in which you were tried.
8:23 Farooq Adam Khan. I would love to discuss it but that would require [a] special addition of herald magazine. However, to answer, the spirit behind your question my greatest regret is the fact that I failed to do what I still think was necessary at the time. Even now I have great memories of the most difficult and trying days of my life.
8:23 Comment From Hamza. What exactly is the purpose of the “military court” in any set-up, and what is its jurisdiction limited to in other democracies in the world? Is there any other country in the world where military courts are part of the judicial process legitimately and what is the argument used to justify their existence?
8:37 Farooq Adam Khan. The Military Court which is specifically established for the enforcement of the Military Law in respect of those subject to Military Law cannot be seriously questioned. However, other courts established under special laws which are manned by Military Officers are done due to special circumstances which require special major. I have undergone a trial by court martial and I have never said at any time that I have been unjustly dealt with. I have also appeared in a number of cases before a Military Court established under Martial Law regulations and, at the risk of being censured by my present peers, I can honestly say that process procedure intelligence and honestly of the presiding officers was far superior to those conditions prevailing in the civilian courts then and even now. It is a fact that most litigant preferred to have their cases processed by Military Courts. Pakistan is not the only country in the world which has had military courts trying civilians. This is a normal happening where the circumstances dictate such a step to be taken.
8:37 Comment From Najam. Does our constitution allow to have two different forums for criminal trial, one for civilians and other for military men? If yes, then what about concept of equality before the law?
8:42 Farooq Adam Khan. The Constitution specially provides the trial of military personnel by military courts. Furthermore the Constitution of 1973 ousts the jurisdiction of the High Court in interfering with the decisions or actions of Military Courts when acting in accordance with law. The question of equality does not arise. When civilians are accused of civil/criminal offences not involving the Armed Forces, [they] are not liable to be tried by Military Courts (properly called Court Martial).
8:43 Comment From N. J. Why do you think successive governments have failed to reform the police department that could help in a speedy trial? Is it for political purposes or just negligence?
8:44 Farooq Adam Khan. Short answer to N.J… It suits our present democratic order to have criminal cases pending eternity
8:45 Comment From Agha K. What role did the Supreme Court have in the first place in the setting up of military courts?
8:47 Farooq Adam Khan. In 1998 the full bench of Supreme Court of Pakistan held the establishment of Military Court for trial of civilians as unconstitutional and without lawful authority. (1999 SCMR 569).
8:48 Comment From Haider Naqvi. While historically the military is projected as a fair/disciplined organization, undoubtedly by military inclined stakeholders, fair criticisms of the military’s apparent ‘objectivity’ have also emerged. Therefore, should the military courts continue to operate as independent judicial units, even in cases involving uniformed men, without any civilian involvement?
8:55 Farooq Adam Khan. It is unfortunate in the extreme that the reputation of the men in uniform has been besmirched to such an extent in the last few years that they have very little credibility in their impartiality, honestly and ability. But this deterioration is not exclusively relevant to the members of the Armed Forces. The whole nation is contaminated. No institution stands out as a beacon of light today. In my opinion no difference whatsoever can be made by enabling a man in a three piece suit to sit beside a decorated and probably honest military officer.
8:55 Comment From Muhammad Awais. What is the reason behind Military courts activism?
8:59 Farooq Adam Khan. When there is no military court in the land today, what “activism” could they possibly be accused of. In fact I wish the Arm[ed] Forces would be less passive and resort to “activism”.
9:00 Comment From Muhammad Shehzad. Military courts are not good for the people of Pakistan. What do you think?
9:01 Farooq Adam Khan. I disagree
9:02 Comment From S. Raza Ali. Please elaborate!!
9:05 Farooq Adam Khan. The People of Pakistan will welcome with both hands anybody who will ensure speedy, efficient and easily available justice to all and not only to the few people who have enriched themselves by questionable means.
9:07 Farooq Adam Khan. Thank you for taking part in this discussion. I hope most of your concerns were answered.