In a historic judgment, a five member bench headed by Justice Ijazul Ahsan, the Supreme Court of Pakistan has declared the trial of civilians in military courts illegal and abolished a 56-year-old law, Section 2 of the Pakistan Army Act of 1952, which allowed civilian trials in military courts. The ruling is a momentous shift in Pakistan's legal landscape, upholding the principles of Article 10A of the Constitution, which enshrines the fundamental right to a free and fair trial. Despite Pakistan's adoption of the Universal Declaration of Human Rights in 1948, it wasn't until the 18th Amendment in 2010 that the Parliament formally incorporated this right into its constitution as Article 10A. The dawn breaks with the promise of democracy and civilian supremacy in Pakistan, a nation with a troubling past marred by the violation of fundamental rights.
The Constitution of Pakistan envisages trichotomy of powers and independence of judiciary in preamble whereby all the state organs, namely, the legislature, the executive, and the judiciary divide the governmental authority. Through division of powers, each branch exercises its sovereign authority within its constitutionally assigned sphere whereas, in military courts, the executive plays the role of judiciary hence threatening the trichotomy of powers.
Regrettably, even leaders of democratic leanings, like Bhutto after the 1977 elections, sanctioned military trials for civilians.
In our nation's history, we have witnessed the erosion of constitution by different military dictators, but the judiciary in Pakistan has played a generally positive role, if the Tameez Uddin case or Dasso case are excluded from the record. Regrettably, even leaders of democratic leanings, like Bhutto after the 1977 elections, sanctioned military trials for civilians. These actions were found unconstitutional by the high courts of Punjab and Sindh in cases like Niaz Ahmed Khan vs Province of Sindh and Darwesh M. Arbey vs Federation of Pakistan. Later, during his second term, another democratic leader, Nawaz Sharif, allowed military trials through an ordinance, a move challenged in the Sheikh Liaqat Hussain and others vs Federation of Pakistan case, which deemed military courts unconstitutional. The deadliest terrorist attack at APS on December 16, 2014, reignited discussions about establishing military courts for terrorists, culminating in the 21st Amendment. However, this measure had a sunset clause, allowing military courts to operate until 2017, with a two-year extension until 2019. Even the current Chief Justice of Pakistan criticized military courts, but the mass killing of 150 children in the APS attack compelled widespread support for this move. Hence, the courts played a significant role in upholding the fundamental rights.
The primary issues included the executive usurping judicial hierarchy, as serving officers sit as judge in the military courts and limiting the right to appeal, as in cases where a person is convicted through a military trial, their sole recourse is a review with limited scope or an appeal to the Military Appellate Tribunal, overseen by a Brigadier or an official appointed by the Army Chief. This limited avenue for appeal effectively excludes the jurisdiction of civilian superior courts, undermining the principles of fairness and justice. This prompted the International Court of Justice to call on Pakistan to grant the right of appeal to Kulbhushan Jadhav, leading to changes in Pakistani law.
The case of Idrees Khattak, a human rights defender, epitomizes military court injustices. He went missing in November 2019 and reappeared in June 2020, facing charges under the Pakistan Army Act (PAA) and the Official Secrets Act (OSA). On December 2, 2021, media reports revealed a 14-year prison sentence for alleged espionage. The military court's judgment remains undisclosed, and the Peshawar High Court has refrained from intervening. This emphasized on the urgency of reevaluating military courts' jurisdiction in civilian matters, as highlighted in the recent Supreme Court ruling.
When citizens are left in the dark about procedures and offenses, achieving justice becomes a monumental challenge, directly undermining the fundamental right to a fair trial.
How does trying civilians in military courts impact the fundamental right to a fair trial, as guaranteed by Article 10A? Regular courts are open to the public, ensuring transparency in proceedings. In stark contrast, military trials remain shrouded in secrecy, with no information provided about location, timing, or procedures. A prime example of this was the April 2, 2015, convictions of seven individuals for undisclosed offenses, a clear departure from standard criminal procedure.
These military courts are composed of high-ranking serving officials, often lacking a legal education, increasing the risk of neglecting legal principles, relevant laws, and proper procedures. Democracy and the judicial system hinge on transparency. When citizens are left in the dark about procedures and offenses, achieving justice becomes a monumental challenge, directly undermining the fundamental right to a fair trial. Criminal law is guided by universal principles, like the prosecution's responsibility to prove cases beyond a reasonable doubt. In military courts, procedures and the nature of convictions remain undisclosed, undermining these foundational principles.
The case of Idrees Khattak, a human rights defender, epitomizes military court injustices. He went missing in November 2019 and reappeared in June 2020, facing charges under the Pakistan Army Act (PAA) and the Official Secrets Act (OSA). On December 2, 2021, media reports revealed a 14-year prison sentence for alleged espionage.
Pakistan's judicial system faces numerous shortcomings. The country's low 10% conviction rate reflects issues such as compromised evidence due to influence on investigating officers, a burdened prosecution, and defense lawyer’s adept at finding legal loopholes. Additionally, outdated methods and a lack of consideration for modern science and technology hinder the investigative process, further contributing to the low conviction rate.
Rather than addressing these systemic issues, the government often resorts to military courts in cases like the APS attack or the May 9th riots. This approach bypasses the need for proper evidence and established procedures found in the CrPC or Qanoon-E-Shahadat Ordinance of 1984, allowing for easier convictions based on presumption.
The May 9 riots have rightly been condemned, and it is crucial that the accused face trial in civilian courts. However, it is equally important that fundamental rights are respected and upheld throughout the legal process. The Supreme Court must be applauded for its commitment to justice and human rights, and it is hoped this judgement will be implemented.