Military Courts and Civil Rights: A Critical Analysis of Pakistan’s Judicial Paradox
The Supreme Court of Pakistan’s early verdict in Constitution Petitions Nos. 24, 25, 26, 27, 28, 30, and 35 of 2023, holding certain provisions of the Pakistan Army Act, 1952 as ultra vires to the Constitution, was a giant step to affirming the supremacy of the Constitution and protecting fundamental rights. This judgment, passed by the majority of the Bench, set aside clause (d) of subsection (1) of Section 2 (comprising its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the Army Act. This ruling was a firm alignment against the trials of civilians in military courts, protecting the principles of judicial independence and fundamental rights enshrined in the Constitution. Yet, the later Intra Court Appeal (ICA), which reversed the ruling, has raised serious doubts about the status of constitutional justice and sanctity of fundamental rights in Pakistan.
In sharp contrast to the above, the ICA’s ruling to reinstate the challenged provisions of the Pakistan Army Act, 1952, has essentially belied these principles. The ICA’s ruling justified the trials of civilians before military courts due to the gravity of the crimes during the events of May 9 and 10, 2023.
NO CIVILIAN SHOULD BE TRIED BY MILITARY COURTS
The Supreme Court’s very first verdict was based on the right to a fair trial under Article 10-A of the Constitution. It made it categorically clear that no civilian may be tried by military courts, as doing so is against the rules of natural justice and the precept of due process. The verdict reiterated the fact that the ambit of the authority of the military courts has to remain strictly within members of armed forces and was, at all costs, not to extend to civilians, as it was a blatant abuse of the Constitution. In doing so, the Supreme Court upheld the integrity of the civilian judicial system so that all citizens remain equal before the law.
First, the ICA has overlooked the long-standing legal doctrine that military courts, by nature, do not have the guarantees of independence and impartiality which are inherent in the civilian justice system. As military courts are intended to be judicial entities independent within the armed forces, independent of the direct chain of command of the military hierarchy, it is expected in theory to deliver a fair trial, uphold judicial independence, and uphold due process through set procedures under the Pakistan Army Act, 1952, and the related Rules. However, the reality is often at variance from such theoretical expectations. Military courts, even if theoretically independent, function within a military setup where the chain of command exercises undeniable influence (Munir, 2024). Judges presiding in such courts happen to be members of the armed services, subject to military discipline, promotion, and appointment, potentially creating a conflict of interest. Even at the times, prosecutors, defense lawyers, and judges are members of the same institution and, therefore, inherently biased. It is this structural linkage with the armed services hierarchy that potentially exerts subtle, if not direct, influence thereof, acting to compromise the judges and lawyers to act neutrally.
Secondly, the judgment of the ICA neglects the fact that the right to a fair trial is one provided for under universal human rights whose dignity cannot be sacrificed even in egregious crimes. By approving military trials for civilians, the ICA has actually supported a regime under which people can lose their basic rights depending on the nature of the charge and the situation they have been accused of. This is a perilous precedent, where basic rights are negotiable during emergency situations (The Right to Fair Trial: Better Late than Never | SAHSOL, n.d.).
Thirdly, the ICA’s rationale is seen to bank heavily on the narrative of national security, one that is customarily invoked to justify the undermining of fundamental rights. The judgment mentions the ferocity of the attacks on military establishments again and again but does not question the fact that even the gravest of crimes must still be prosecuted according to law. The Supreme Court’s original judgment had achieved a fine balance between the security concerns of the state and the safeguard of individual rights. However, the ICA has destabilized this balance by superseding the concerns of the state’s security with the concerns of constitutional guarantees. The judgment has virtually given the executive a free hand to sidestep the civilian judicial apparatus and try civilians in military courts, thus undermining the balance of powers. This is an outright attack on judicial independence and calls for serious questions about the judiciary’s capability to safeguard citizens’ rights from executive excesses. The ICA ruling is even perceived to miss the Supreme Court’s very important observation that even where civilians are prosecuted for crimes against military establishments, they have to be tried before conventional courts where they have the right to have a lawyer of their choice, to have their case tried in transparent manner, and to have access to independent appellate procedure. Worst still is the reality of the ICA ruling which has essentially stripped away from the civilians the right to fair trial and due process and relegated them to the status of subjects of a parallel judicial order without accountability and transparency. This is not only in contravention of Article 10-A of the Constitution but is even in violation of Pakistan’s international obligations under the International Covenant on Civil and Political Rights (ICCPR), enshrining the right to fair trial for all people.
Although the ICA has allowed the accused to appeal military court orders in the High Courts, this right of appeal is merely an illusion of justice because the appellate process cannot remedy the fundamental flaws in the initial military trial. In which the evidence is often classified, and the defense is severely restricted. As a result the accused are left without a genuine opportunity to present a robust defense or challenge the legality of their detention and conviction.
In summarizing the debate, the ICA verdict is one step back for constitutional justice and protection of fundamental rights in Pakistan. It has prioritized the interests of the state above the interests of citizens, legitimized the introduction of military courts for civilians, and eroded judicial independence. It is mandatory for the legal profession and society at large to stay vigilant in challenging the verdict and seeking restoration of civilian supremacy and rights under the constitution. The Supreme Court’s initial verdict was a principled step in the direction of the rule of law, whereas the ICA reversal has opened the gate to executive encroachment and subversion of civil liberties.
References
Munir, B. (2024). Establishment of Military Courts in Pakistan and its Effects on Trichotomy of Powers: International and Domestic Standards. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4916508
The Right to Fair Trial: Better Late than Never | SAHSOL. (n.d.). Sahsol.lums.edu.pk. https://sahsol.lums.edu.pk/node/12803
