How Far Will Pakistan’s Supreme Court Venture Into The Battlefield?

How Far Will Pakistan’s Supreme Court Venture Into The Battlefield?
On the first day of the much-anticipated 9-member Supreme Court bench hearing the case on military courts, Justices Qazi Faez Isa and Sardar Tariq Masood excused themselves from being on the bench. Soon after, a 7-member bench was reconstituted and started hearing the case.

Reportedly, senior judge Faez Isa said he could not be a part of the bench until the case on the Supreme Court Practice and Procedure bill was decided. He refused to recognize the bench by saying, “I do not accept today’s court.” Following Justice Isa’s remarks, Justice Tariq Masood said the petitions against the review bill must be heard first. In no time, the news of developments in the court travelled out, and social media got stuck in a divisive muddle.

Legal expert Reza Ali tweeted: “Rare opportunity lost by Faez Isa J to sit on a Bench and resolve opaque jurisprudence on civilians subject to military trials. Granted that he has a legitimate grievance against the current CJP, but in certain defining moments, principles must and should override the self.”

To which, another legal expert Maryam S. Khan responded: “We can turn this another way: a fine opportunity for our CJ to correct course, acknowledge the law, reconstitute the bench according to the latter, and repair the damage he has done to both his office and the judicial institution.”

And their discussion continued…

The June 21 announcement that a 9-member bench would hear the case on the trial of civilians in military courts raised people’s hope for justice, until the very next day the court flipped and flopped, and once again prompted rampant speculations and frenzy.

The bench was constituted to hear a number of cases filed against military courts. Former Chief Justice of Pakistan Jawwad S. Khawaja filed the last petition in question on June 20, challenging the military trials of civilians in military courts. He filed a constitutional petition under Article 184(3) of the constitution through his counsel Khawaja Ahmad Hosain, submitting that the court martial of civilians and Article 2(1) (d) (i) and (ii) of the Pakistan Army Act 1952 should be declared unconstitutional mainly because the Pakistan Army Act 1952 is meant for maintaining internal discipline of the armed forces and cannot extend to civilians when the ordinary courts are functioning, the trial of civilians by military courts when the armed forces are called in aid of civil power is contrary to Article 245 of the constitution as it displaces civil power and does not “aid” it, and the military, as part of the executive, cannot undertake trials as judicial power can only be exercised by the judiciary.

His petition further states that the trial of civilians by military courts infringes on Article 175 (3) of the constitution which is contrary to the separation of powers.

The Supreme Court is yet to entertain Justice Khawaja’s petition. His is the fourth in line to plead in the court against the trial of civilians in military courts. The first petition was filed by PTI Chairman Imran Khan, followed by advocates Faisal Siddiqui and Aitzaz Ahsan.

The voices against the trial of civilians in military courts are becoming louder by the day. Human rights organizations have been objecting to military courts for long. In a statement issued on June 14, the Human Rights Organization of Pakistan stated that although it agrees all those who grossly abused their right to freedom of peaceful assembly and engaged in arson, vandalism and destruction, must be held strictly accountable, the process must take place under civilian laws and in civilian-run courts, “where fair trial standards are far more likely to be upheld than in military courts.”

Likewise, Human Rights Watch stated on May 31 that the Pakistan government should immediately transfer civilians set to be tried in military courts to the civilian justice system. “Trying civilians before military courts violates Pakistan’s obligations under international human rights law to ensure the due process and fair trial rights of criminal suspects.”

Amnesty International has also stated that trying civilians in military courts is contrary to International Human Rights Law, violating the right to a fair trial guaranteed under Article 14 of the International Covenant on Civil and Political Rights, which guarantees the right to a trial before competent, independent and impartial courts established by the law.

Despite such uproar against the military courts, the National Assembly passed a unanimous resolution on June 12 demanding the trial of the May 9 rioters “without a delay and under the Pakistan Army Act, 1952.” Defense Minister Khawaja Asif, who alleged the actions of PTI and its chief caused damage to the state institutions and its evidence is present, moved the resolution. He said, “therefore, actions must be taken against them according to the law and Constitution without even a day’s delay.”

Perhaps the only slight leniency expressed by the government has been in exempting women from trial in the military courts. Lawyer Asad Jamal tweeted: “Resolution passed by NA today holds trials of civilians by courts-martial constitutional. This is the second time within a decade that people's representatives who claim to have not been selected are committing the same blunder. The first time they did so was in early 2015…”

Whether the Supreme Court will take a deep dive into a military judicial system is not known. A judicial system that may carry far-reaching and profoundly discriminate impact must be reviewed urgently. The saner voices among us must be heard – even if the court is so divided.