ISLAMABAD: Justice Ayesha A. Malik, a member of the bench which had declared as unconstitutional the trial of 103 civilians in the May 9 violence case, on Wednesday said that fundamental rights cannot be sacrificed simply because it was deemed expedient.

The government is clear that the detained suspects are ordinary citizens, yet it was compelled to try these 103 persons before the military courts even though they can be tried before the ordinary courts, Justice Malik regretted in a 39-page judgement she authored to explain why on Oct 23, a five-judge bench headed by Justice Ijaz-ul-Ahsan had unanimously declared the trial of these civilians as against the law.

But on Dec 13, 2023, a verdict by a majority of five to one suspended the operation of the Oct 23 short order.

Interestingly, Justice Malik observed, when it came to dealing with terrorists who were waging war against Pakistan, it took a constitutional amendment (21st Amend­ment) to bring that category of persons within the jurisdiction of the military courts. Yet now the Pakistan Army Act (PAA) 1952 and its existence since the F.B. Ali case are being relied on to try ordinary citizens.

Justice Malik regretted that offences under the Official Secrets Act (OSA) were triable before the ordinary criminal courts, which guarantees fair trial, due process and independence as mandated by the Consti­tu­tion.

None of the 103 persons were reported for offences under the OSA, yet applications were made under Section 549 of the Code of Criminal Procedure (CrPC) 1898 for their delivery to military authorities.

The criminal court having jurisdiction over the matter was obligated to form a reasoned opinion whether an accused was to be tried by a military court because the transfer from the ordinary court to the military court for trial amounts to the loss of right to fair trial and due process as well as the right to independent forum, Justice Malik explained.

Burden on magistrate

This places a heavy burden on the magistrate under Section 549 of CrPC to protect the rights of the accused as the (court of) magistrate must satisfy itself that the accused is subject to PAA and can only be tried before a military court, Justice Malik observed.

The denial of a reasoned order by the magistrate is in fact the start of the process which is in contravention of the law as well as denial of the fundamental right of fair trial and due process for the detained citizens, the judgement said.

Fair trial standards have global recognition and acceptability as being the minimum requirement for a person facing a trial, it said.

The right to call witnesses, cross-examine them and to get a reasoned judgement against which the right of appeal is available is also considered mandatory without which this fundamental guarantee of fair trial, rule of law and due process becomes illusionary, Justice Malik said.

According to the judgement, an important feature of fair trial is access to an independent judicial forum and the separation of powers of the judiciary from the executive and the legislature.

The independence of the judiciary should be guaranteed by the state as enshrined in the Constitution and respected and observed by the state.

The judicial independence is also a pre-requisite to the rule of law, which requires judicial forums to be independent, impartial and maintain integrity.

Right to fair trial

Article 10A of the Constitution is a categoric, unqualified and fundamental right to the existence of any person who is to face trial, Justice Malik said, adding that in the F.B. Ali case, the Supreme Court had held with reference to the concept of fair trial that courts cannot strike down a law on any such ethical notion nor can the courts act on the basis of a philosophical concept of law.

With the inclusion of Article 10A, the concept of fair trial and due process are now neither ethical notions nor philosophical concepts.

It is a fundamental right guaranteed by the Constitution which must be adhered to, Justice Malik said.

Likewise, Justice Yahya Afridi in his 20-page judgement said that principles laid down in the F.B. Ali case judgment by a five-judge bench almost half a century ago, had survived the repeated tests of watchful judicial review and thus always referred to whenever any dispute regarding civilians being tried by a court martial or any other forum constituted under sub-constitutional legislation was in question.

But the case decided by the five-judge bench was co-equal in numeric strength by the present bench that heard challenges to the trial of civilians by the military courts, Justice Afridi said, adding that it was a well settled principle that an earlier judgement of a bench was binding not only on the benches of smaller numeric strength but also on the benches of co-equal strength.

Thus a bench of this court cannot deviate from the earlier held by a co-equal bench of this court, Justice Afridi said, adding if a contrary view had to be taken then the proper course was to request for the constitution of a larger bench to reconsider the earlier view. Thus the present bench is bound with the earlier view taken in the F.B. Ali case.

Published in Dawn, January 11th, 2024