Huzaifah Sehgal is a qualified lawyer based in Pakistan

INTRODUCTION

The operation of military courts alongside a fully functioning parallel civilian legal system in Pakistan has always raised eyebrows as to its implications on the civilian legal system, constitution of Pakistan, and Pakistan’s obligations under international law. While military courts were established under Pakistan’s Army Act[1] to primarily try members of the military, its jurisdiction slowly seeped into the civilian sphere to encompass a broad range of criminal offences that were once the exclusive domain of the criminal and civil courts of Pakistan. Not only has the establishment of these courts been deemed unconstitutional[2], but their composition, procedure, and decisions, all sit ill with Pakistan’s obligations under its constitutional and international law.

BRIEF HISTORY OF MILITARY COURTS

Trials of civilians by military courts have a long and contentious history. In the distant past, military courts were established to try civilians on the grounds of necessity and establishment of public order, whenever emergency was declared in Pakistan and military take over took place[3]. These courts were declared unconstitutional by the Supreme Court of Pakistan in Sheikh Liaqat Hussain and others v. Federation of Pakistan[4], however, they were legalized for 2 years by the government via the 21st constitutional amendment[5], after the Army Public School Massacre in December 2014, to try terrorist suspects expeditiously. The 21st amendment was followed by the 23rd constitutional amendment that further extended the tenure of utilization of military courts to try non-military personnel by 2 years – ending on 6th of January, 2019[6]. Nevertheless, these courts have often and unilaterally invoked their jurisdiction to try civilians not involved in terrorism, even after the lapse of the extended time limit provided by the 23rd constitutional amendment.

WHY CIVILIANS SHOULD NOT AND CANNOT BE TRIED BY MILITARY COURTS

Civilian prosecution by martial courts is an ongoing issue in Pakistan that spawns a diverse array of subsequent dilemmas – the most serious of which is that it ruthlessly undermines the fundamental right of fair trial[7] of individuals. The judges of the military court are neither required to have any legal qualification nor are they independent from the military[8], which is why there is a 99% conviction rate[9] in military courts. The ambiguous procedures of military courts have resulted in acquittals of convicted terrorist suspects by the superior courts of Pakistan in the past[10]. Unsurprisingly, the decisions of military courts no longer carry a right to appeal before the superior courts[11] however, the Superior courts have time and again assumed their jurisdiction of review in the interests of justice[12].

Trial of terrorist suspects by these courts by virtue of the 21st and 23rd constitutional amendments, in light of the grave security issues, gave a sense of legitimization to trial of non-military personnel/civilians by military courts. Acting on this false sense of legitimization and the unconstitutional provisions of the Pakistan Army Act 1952, hundreds of supporters of the Pakistan Tehreek-e-Insaaf (hereinafter PTI)[13] who have been arrested on charges of damaging civilian and military infrastructure in riots that took place on 09th of May, 2023, dread their trial in military courts.

In the presently pending petitions regarding the constitutionality of the trials of civilians by military courts, the Hon’ble Supreme Court of Pakistan has noted that without any constitutional amendment providing jurisdiction to military courts to try civilians, the military cannot hold civilians to account. However, a more pressing and critical concern that demands attention is why military courts are being granted expanded jurisdiction instead of enhancing the existing, fully operational civilian legal system?

The offences for which the military courts were originally granted jurisdiction to try terrorist suspects via the 21st and 23rd constitutional amendments exclusively[14], fall within the ascendancy of the Anti-Terrorism Courts (ATC), established under the Anti-Terrorism Act of 1997. The proponents of military courts have often voiced the culpability of civilian judges to threats of security to second the authority of military courts. But what makes more sense – providing foolproof security to ATC judges and others involved in court proceedings in the true letter and spirit of Section 21AA of the Anti-Terrorism Act 1997 or establishing a parallel, non-independent, and legally unqualified legal system?

Additionally, it has been argued that civilian legal systems suffer from delays whereas the military courts provide speedy thus, effective dispensation of justice[15]. Although the law recognizes the maxim, “Justice delayed is justice denied[16]”, it is a fallacy to believe that speedy decisions by military courts are adequate, let alone effective decisions. Convicting individuals on the basis of insufficient evidence and biases, without any right to appeal, can never be tantamount to a judicious decision – that too by individuals who are not required to be legally qualified.

The delays in civilian judicial system of Pakistan are not incurable. A number of statutory laws in Pakistan do not only set out offences and their respective punishment, but also lay down a timeline within which the competent court has to adjudicate upon the matter. An example of such law is the Financial Institutions (Recovery of Finances) Ordinance, 2001, which prescribes that the court shall dispose of any matter within 90 days after leave to defend has been granted by it[17]. While the courts do not generally adhere to this particular time limit, such time limitations, if strictly incorporated by the legislation in the relevant laws, can be one of the most viable cures for the delays in civilian legal system.  

CONCLUSION

The trials of civilians by military courts not only jeopardizes the fundamental rights of individuals, but also carry constitutional and international ramifications for Pakistan. While these courts were used in the past to try civilians whenever a military dictator abrogated the constitution by imposing martial law, in recent times, military courts have been granted a clocked constitutional cover through the 21st and 23rd amendments to the Constitution of Pakistan, to try non-military personnel in cases involving terrorism – notwithstanding the operation of a parallel system of ATCs. The civilian legal system in Pakistan is far from being perfect, however, establishment of military courts to try civilians is not the solution. Rather than expanding the authority of military courts into civilian matters, Pakistan should direct its focus on rectifying the issues within its civilian judicial system to reflect the might of rule of law, not of rule of power.

[1] The Pakistan Army Act 1952

[2] PLD 504 SC 1999

[3] Hina Altaf. “History of Military Interventions in Political Affairs in Pakistan”, City University of New York (CUNY) Academic Works. 2019. Available at <https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=4274&context=gc_etds>  

[4] PLD 504 SC 1999

[5] 21st Amendment, The Constitution of Islamic Republic of Pakistan, 1973. January 2015.

[6] 23rd Amendment, The Constitution of Islamic Republic of Pakistan, 1973. January 2017.

[7] Article 10-A, Part 1, Chapter 1, The Constitution of Islamic Republic of Pakistan 1973; Article 14, International Covenant on Civil & Political Rights 1966.

[8] Dr. Bakht Munir. “Establishment of Military Courts in Pakistan and its Effects on Trichotomy of Powers: International and Domestic Standards”, Punjab University Journal Pakistan Vision Vol. 21 No. 2.

[9] 99pc conviction rate in military courts: ICJ. <https://www.thenews.com.pk/print/421602-99pc-conviction-rate-in-military-courts-icj#:~:text=Islamabad%20%3A%20Amid%20the%20debate%20about,which%20646%20have%20been%20decided.>

[10]  PLD 2019 Peshawar 17

[11] Section 133 The Pakistan Army Act 1952

[12] PLD 2019 Peshawar 17

[13] Pakistan Tehreek-e-Insaaf: the political party of Pakistan’s former premier Imran Khan

[14] Section 21-G, The Anti-Terrorism Act 1997

[15] Dr. Bakht Munir. “Establishment of Military Courts in Pakistan and its Effects on Trichotomy of Powers: International and Domestic Standards”, Punjab University Journal Pakistan Vision Vol. 21 No. 2.

[16] William E. Gladstone

[17] Section 13, Financial Institutions (Recovery of Finances) Ordinance 2001