A year after SC annulled military courts, civilians await justice

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A year after SC annulled military courts, civilians await justice​

The freedom and liberty of these civilians are entirely dependent on the fate of the government's appeal against the SC verdict on Oct 23, 2023.
Rida Hosain
October 23, 2024

On October 23, 2023, the Supreme Court struck down the section of the Pakistan Army Act, 1952, which allowed the court martial of civilians. The majority judgements were authored by Justices Munib Akhtar and Ayesha A Malik. The only dissent in the 4-1 majority verdict came from Justice Yahya Afridi. The latter, while agreeing with the majority that civilians could not be court martialled for events related to May 9, did not strike down the law that permits the court martial of civilians.

In doing so, the highest court of the land found that the procedure adopted in military courts was a violation of fundamental rights. At the same time, the court also ordered that individuals accused of offences in relation to May 9 and 10 shall be tried by ordinary criminal courts.

On November 17, the federal government filed an appeal against this decision, following which, the appellate bench, on December 13, partly suspended the judgement, allowing the military trials to proceed subject to the condition that no final judgement will be announced, until it reached its verdict.

A year on, over 80 civilians still remain in military custody.

The purpose of military law is to maintain discipline within the armed forces. It was never designed to be applied to civilians. In fact, it was only in 1967, during Ayub Khan’s tenure, that the Pakistan Army Act 1952 was amended, making civilians subject to military law, and allowing trial by military courts.

Amnesty International has highlighted that “military courts in Pakistan are … designed to maintain discipline within the armed forces.” Serving members of the military consent to being subject to this system of discipline. Civilians do not. There is also no different procedure for civilians in the military justice system.

When civilians are subjected to military law, they are effectively placed in a situation where their fundamental rights are suspended. In his judgement, Justice Akhtar used a Dickensian analogy and held: “It cannot be that the people of Pakistan are reduced to a point where, in respect of rights which ought to be fundamental, they are instead required to go (as it were) cap in hand to the state, pleading plaintively: ‘Please Sir, can we have some more?’ That is not what fundamental rights mean. That is not what fundamental rights are. That is not what the Constitution means. That is not what the Constitution is.”

Subjecting civilians to the military justice system places them in a situation where they must plead for fundamental rights. It is up to the state to grant and deny such rights at its whims. This defeats the very purpose of rights that, by their very nature, are meant to be fundamental.

The preamble of the Constitution states that fundamental rights shall be guaranteed. The people have given to themselves a supreme document that safeguards fundamental rights. This is a command of the Constitution. It was this very command that was enforced on October 23 last year.

Even a plain reading of the Pakistan Army Act Rules, which set out the procedure to be adopted in military courts, reveals that due process standards are missing. Justice Malik held: “It is clear that there is a lack of impartiality and independence within a military trial and the concept of fairness and due process is missing from the procedure.”

In her judgement, Justice Malik explained how the process in a military court was entirely inconsistent with fair trial and due process rights.

Presiding officers in a military court are serving members of the military that are not required to give a reasoned judgement. Decisions regarding the life and liberty of civilians can be handed down by simply stating: “Guilty”. Nothing more is required. The Army Act rules provide:

Moreover, there is no independent right of appeal; a right of appeal also lies to a court of appeals consisting of the Chief of Army Staff or one or more officers designated by him. Besides, the right to cross-examine witnesses, the right to prepare a defence and the right to freely communicate with a legal adviser can be suspended at any point by the presiding officer of the court martial.

This is not the first time the judiciary has spoken against military courts. In 1998, a law was passed that extended the jurisdiction of military courts for offences including terrorism. A year later, while hearing the Liaquat Hussain vs the Federal of Pakistan (PLD 1999 SC 504) case, the Supreme Court held: “ … the Armed Forces cannot abrogate, abridge or displace civil power of which Judiciary is an important and integral part. In other words, the Armed Forces cannot displace the Civil/ Criminal Courts while acting in aid of civil power.“

In the judgement authored by Justice Ajmal Mian, he found that the armed forces are empowered to act in “aid” of civil power; the armed forces cannot “supplant” civil power.

Later in his book, A Judge Speaks Out, Justice Ajmal Mian wrote: “Our judgement was acclaimed as a landmark decision in Pakistan and abroad and was considered a step towards the establishment of the supremacy of the Constitution. However, the government in power was not happy with it. It did not accept the judgement in good grace, and a vigorous campaign against the judicial system on the state-controlled electronic media commenced … This went on for more than two months.”

Successive governments in Pakistan have continued to defend the court martial of civilians. This displays a regrettable lack of faith in the civilian justice system, and prevents the same from progressing.

Source:
https://www.dawn.com/news/1866943/a-year-after-sc-annulled-military-courts-civilians-await-justice