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.

Civilians and military law

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.

Laws and national security

In Pakistan, one of the common justifications for military courts is that the circumstances and the allegations justify the unfair procedure. The state continues to view fundamental rights from a security lens. But Pakistan is not unique in grappling with a balance between civil liberties and security considerations.

In his decision declaring military courts for civilians unconstitutional, Justice Akhtar quotes from Lord Atkin’s lone dissent in Liversidge vs Anderson (1942). During the Second World War, defence regulations were passed, giving the secretary of state in England the right to detain individuals, without trial, provided there was reasonable cause that they were acting prejudicial to public safety. The majority found that the regulations conferred ministerial discretion which could not be inquired into by the courts.

Lord Atkin did not agree, and held that the secretary of state did not have unfettered discretion.

When the courts sit in judgement over executive/ legislative action, they act as the final guardians of fundamental rights. Lord Atkin warned, “it has always been one of the pillars of freedom, one of the principles of liberty … that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive”.

Atkin cautioned against judges who, when face to face with claims involving liberty of individuals, show themselves to be more executive-minded than the executive. The principles of Atkin’s dissent endure.

Any balancing exercise, where a balance is to be struck between fundamental rights of due process, and maintaining the security of defence/ army installations is addressed by civilian trials. Decisions taken in the name of national security have wrecked our jurisprudence, and our history.

For the civilians booked in May 9 cases, the government argued that military courts are essential as the “existing criminal justice system may not be as effective or suitable as the military courts given issues of delay, security and national interest.” Justice Malik did not accept this proposition, and held that fundamental rights cannot be curtailed on grounds of expediency. When Lord Atkin spoke, he spoke alone. When our Supreme Court spoke, a majority of four judges spoke. The voice of the four judges of the apex court remains suspended, and subject to the determination of the appeal.

After the 26th Amendment

With the 26th Constitutional Amendment now in the field, the federal government’s appeal against the Oct 23 judgement will likely be transferred to the new Constitutional Bench.

Article 191A (5) of the 26th Amendment provides that all appeals against judgements passed under the Supreme Court’s original jurisdiction that are “pending or filed … stand transferred to the Constitutional Bench”. A seven-member bench of the Supreme Court had already started hearing the merits of the appeal in the military courts case. The use of the phrase “pending” suggests that the military courts appeal will likely be transferred to the Constitutional Bench.

A commission that comprises a majority of non-judicial members will decide the judges that will sit on the Constitutional Bench. The commission includes: (i) the law minister, (ii) the attorney-general, (iii) a National Assembly member from the treasury benches, (iv) a Senate member from the treasury benches, and (v) a woman/non-Muslim nominated by the speaker.

Thus, government representatives have been given a say in selecting the judges who will sit on the Constitutional Bench. Litigants cannot choose their own judges. It is destructive for judicial independence for the government to be given such a power in the selection of judges to hear constitutional cases. There is a real risk that the government representatives on the commission will select judges they perceive as sympathetic to the government to sit on the Constitutional Bench.

The irony here is that it is the federal government that defended the trial of civilians by military courts; it is also the federal government that appealed the decision declaring military courts for civilians unconstitutional. It would, therefore, be completely inconsistent with judicial independence for the federal government to have a say in the judges that will hear constitutional cases to which it is a party.

Amid all the tussle between the power corridors and the judiciary, what is most unfortunate is that a year after the historic decision declaring military courts for civilians unconstitutional, civilians in military custody still await justice. These civilians are not in judicial custody. They do not have a right to apply to the court for bail. Their freedom and liberty are entirely dependent on the fate of the appeal.

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