Pakistan is currently witnessing a constitutional and political crisis in the country, with 33 civilians being tried in military courts under the Pakistan Army Act (1952) and Officials Secret Act (1923). These steps were taken following the riots that erupted after former prime minister Imran Khan’s arrest on May 9. Trial of civilians in military courts are a blatant violation of democratic norms. It is a glaring surrender of human rights as well as violation of different international legislative documents.
Trials of civilians under the Army Act violate Article 10-A of the constitution of Pakistan that guarantees the right to fair trial. Pakistan is the only country in South Asia which allows the trial of civilians in military courts for non-military offences. Despite backlash, the government has chosen to go ahead with this draconian measure. Military courts have badly failed to fulfill the standards of a fair trial. Consider the following:
Article 10-A: The Right to Fair Trial:
Article 10-A regarding the right to fair trial covers several aspects. It is not just limited to criminal charges, but also includes the presumption of innocence of the accused, and prevention of any kind of custodial torture. In 2012, during the contempt of court proceedings against then prime minister Yousaf Raza Gillani, the court was of the view that right to fair trial was indeed a recognized right in our constitution. (PLD 2012 SC 553 2012). Given Pakistan’s Constitutional and political landscape, right to fair trial is a constitutional shield for the victims of institutional aggression, prisoners of conscience, and political workers.
Here is why military courts do not have the capacity or the unbiased will to conduct a fair trial of civilians especially in this heated political landscape:
Lack of due process:
Due process is the essence of any legal system so that all kinds of legal rights pertaining to the accused are fulfilled. But trials in military courts follow no process. Procedures of these trials are kept hidden and names of the accused being charged in the military courts and their location are not disclosed either.
Six persons were convicted and sentenced to death and one with life imprisonment of undisclosed offences. It was the inherent right of then convicted persons to be informed of their charges. The venue and time of trials are not disclosed to the public, hence restricting public access to the hearing. (Munir 2020). This principle about the disclosure of the charges against the accused has been mentioned in Liaqat Ali Chughtai. (Liaqat Ali Chugtai V. Federation of Pakistan 2012).
Absence of appellate jurisdiction:
According to reports, the accused persons convicted by the military courts have the right to appeal to a military appellate tribunal. This tribunal is presided by an officer not below the rank of brigadier. The verdict upheld by this tribunal is final. Civilian courts do not have the appellate jurisdiction over the decisions of military courts. They have the power to exercise writ jurisdiction in special cases but due to pressure from unknown forces, the courts have always acted with caution.
Lack of legal Acumen and Impartiality:
The basic credibility of any court of law lies in its impartiality and independence. The judges of military courts are neither impartial nor independent from the influence of their superiors. They must survive in the hierarchy of military and resultantly their decisions are not independent. This principle was confirmed in Sheikh Liaqat Hussain verdict. ( Sheikh Liaquat Hussain v. the Federation of Pakistan 1999). As a result, military courts were declared unconstitutional having no legal effect at all. Moreover, the judges of the military courts do not have legal training nor a legal degree, which is a prerequisite for a judge.
No Access of Public to Judgements:
A well-articulated, detailed judgement can set legal principles for new cases, and it can be a source of guidance for the lawyers and judges simultaneously. Moreover, if the judgement is made public, the public can get to know about different aspects of law and criminal justice. Many jurists believe that a well-reasoned judgement with cogent arguments is a component of fair trial. But it is unfortunate that the judgements from the military courts have never been made public. Despite multiple requests from the family members of the convicts, the judgements have not even been made available to them. They seek justice while being in the dark about the reasoning given by the judge.
Violation of International Legislative Documents:
Pakistan is a signatory to the International Covenant of Civil and Political Rights (ICCPR). Article 14 of ICCPR states that everyone is entitled to fair and public hearing by an impartial, competent, and independent tribunal which is established by law following its due course. None of these conditions are fulfilled by a military court trial and it is therefore a clear violation of the standards of International Law.
Moreover, Article 6 of the European Convention of Human Rights lays down the basic minimum requirements for a fair trial. The hearing should be public and fair i.e., free of all kinds of prejudices. Announcement of judgement should be made publicly except in certain cases. The accused should be presumed innocent before proven guilty. Just like the above violation, same standards of a fair trial are not fulfilled by a military court trial.
Evidence of Human Rights Abuses in Peshawar High Court Judgement
The late judge Justice Waqar Seth in his landmark judgement of 2018 set aside the punishments of 74 convicts. Several instances of human rights abuses during this whole course of trial was also highlighted and those were the basis for the acquittal of those convicts (Abdul Rashid V. Federation of Pakistan 2018) Justice Seth mentioned is his judgement that the record about the prosecution witnesses was erased and the same defense counsel was provided to many accused. Moreover, a shocking element was that the complete proceedings were based on confessional statements which were taken in isolation with no contact of the accused with their families or counsel. Hence, the honorable court stated that these statements were not admissible because the respective protocol for a confession was not followed. Reference to the case of Muhammad Ismail was given. (Muhammad Ismail v. The State 2017).
Given the aforementioned concerns, trial of civilians in military courts is purely anti-democratic in nature. There are many instances of injustice by military courts, proving that these courts are not capable of ensuring a fair trial.
The writer is a third-year law student at Dr. Muhammad Iqbal Law School, Government College
University, Lahore. He is currently a legal intern at Fair Trial Defenders Legal Aid Cell.
