ISLAMABAD:
After the convictions of PTI activists by military courts, all eyes are on the constitutional bench which will decide the legality of this form of justice.
The constitutional bench, with a fresh six-month extension, is likely to resume hearing the military courts’ case soon after winter vacations.
On October 23 last year, the larger bench, led by Justice Ijazul Ahsan, declared that trials of civilians in military courts are unconstitutional. Subsequently, the government filed intra-court appeals against the SC judgment.
The larger bench, led by Justice Sardar Tariq Masood, suspended the SC judgment and allowed the trials of civilians in military courts. Recently, the constitutional bench allowed military courts to announce the decisions.
Interestingly, the bench did not refer to any legal provision in the Constitution in its interim order. So far, the constitutional bench has been unable to create a significant impact as it has not passed a judgment on a legal matter.
However, the government is satisfied with the constitutional bench’s performance. That is why it got a six-month extension by a majority of seven to six members of the Judicial Commission of Pakistan (JCP).
However, the majority of the JCP desired that all SC judges be nominated for constitutional benches. With this in mind, lawyers are skeptical whether the present constitutional bench will decide the military courts’ case in an expeditious manner.
On the other hand, the United States, European Union, and United Kingdom are raising their voice against the trials of civilians in military courts. Lawyers believe it is not easy for the constitutional bench to endorse these trials after the international backlash. During the tenure of former CJP Umar Ata Bandial, the government told the SC that a lengthy sentence would not be awarded to the accused persons. Justice Bandial hoped that the right to appeal would be granted to suspects being tried in military courts. However, this was not entertained.
Advocate Abdul Moiz Jaferii says that on May 9, 2023, rioters belonging to a political party acted criminally and damaged public property.
“Instead of being prosecuted for this offence with the due process in civil courts, we saw the target of their ire, a government department, decide that it was going to deliver a befitting response,” he says. “The army proceeded to play judge, jury, and executioner with these individuals,” he adds.
Jaferii also says that the Supreme Court declared these military trials and the detentions of civilians by the military to be illegal. “We then saw a new law allow for a new appeal against the Supreme Court decisions, and that pronouncement was suspended. Thereafter, we have seen absolute stagnation and no recognition of the urgency involved here. Justice Shahid Waheed was on the appellate bench, and he remarked that the scope of an intra-court appeal in the Supreme Court was very limited.”
The lawyer recalls that the next time a bench was assembled, Justice Waheed was absent.
“In Justice Qazi Faez Isa’s tenure, Justice Aminuddin led this bench and achieved absolutely nothing other than allowing the military more and more space to do what they wanted as interim measures. Then came the 26th Amendment and it has borne fruit today.”
He states that a bench, unwilling to decide fundamental issues of liberty, allowed the military to announce conditional judgments, which have been duly given with much sternness and warning.
Jaferii continues that this is not justice. “It is the usurpation of due process allowed by our own Supreme Court. It is a lesson taught to all of us through the barrel of a gun. This is an example of the warnings lawyers issued about fundamental rights violations that can occur post the 26th Amendment, when you allow the executive to capture the judiciary.
On the other hand, Hafiz Ehsaan Ahmad says the trial of civilians by military courts on violation of military laws had never been the subject of any discussion or controversy since 1975 in Pakistan. “Every political party, including their heads, supported such trials in military courts on different occasions. It is also important that no foreign government ever remarked on such military trials under the Pakistan Army Act 1952. It is also important that after the judgment of the Field General Court Martial, the right of appeal is available to the accused under the Pakistan Army Act. After being aggrieved, the accused can challenge the sentence before the high court under Article 199 of the Constitution, and then before the Supreme Court under Article 185 as a matter of right, and finally under Article 188 of the Constitution in the form of a review.
He further explains that since 1972, the military courts in Pakistan tried 1,875 civilians for the commission of offences under the Pakistan Army Act and of Official Secrets Act. He adds that of them, only 180 civilians were tried by the military courts from 2018 to 2022 in the PTI govt tenure.
“The accused convictions since had been regularly challenged in the superior courts of Pakistan, and most of the time, these sentences were upheld by the high courts and the supreme court.
He said statements by the USA, European Union, and the Foreign Office of the UK on military trials of civilians, particularly on the announcement of sentences of 25 persons issued in pursuance of a Supreme Court order dated 13th December 2024, are uncalled for.
“It seems to be only for public optics, and a matter of meddling in the internal affairs of Pakistan. This is particularly true since the Supreme Court of Pakistan, vide its 1975 judgment and thereafter, repeatedly held in various decisions that the trial of civilians for violating military laws, including the Pakistan Military Act 1952 and Official Secrets Act 1923, was not against fundamental rights. He continues that the court additionally decided that it was not against due process of law nor discriminatory, nor a violation of any transparency. “Resultantly, it was not against the concept of a fair trial, and the present sentences have also been announced by military courts in pursuance of the Supreme Court orders issued on December 13, 2024.
He also clarifies that the Supreme Court is the ultimate arbitrator in the Constitutional and judicial system of Pakistan. “The matter of the trial of civilians by military courts is still pending in the Supreme Court, and even the sentences announced recently will be subject to the final decision of the Supreme Court. “Therefore. It is unnecessary to make immature statements at this stage, and we should wait for the final outcome.”
