The Supreme Court’s recent decision to return military court documents concerning the May 9 civilian trials has sparked intense legal and constitutional discussions. The seven-judge Constitutional Bench (CB), led by Justice Khan, examined the documents but chose not to retain them, citing concerns over prejudice and the possibility of future appeals reaching the higher judiciary.
Background and Context
The issue at hand revolves around the trials of civilians in military courts, particularly those accused of participating in the attacks on military installations on May 9, 2023. These trials have been a subject of intense debate, with legal experts questioning the legitimacy, fairness, and transparency of trying civilians under military jurisdiction. The Supreme Court had earlier nullified these trials in an October 23, 2023, ruling, prompting the government to file intra-court appeals (ICAs).
The documents submitted by the Defence Ministry outlined the procedures followed during the trials, including the roles of presiding officers, prosecutors, and interpreters. The submission also described how sentences were confirmed by commanding officers and detailed the process of cross-examining witnesses.
Judicial Scrutiny and Reservations
A key concern raised by the judges was whether the military court judges functioned independently or remained subordinate to their superiors. Justice Mandokhail specifically questioned if these judges adhered to the standards outlined in Article 175 of the Constitution, which guarantees judicial independence. The response from the government’s counsel, Khawaja Haris Ahmed, was that while military court officers might lack formal legal training, they possessed a comprehensive understanding of the Pakistan Army Act (PAA).
Justice Hilali found it troubling that there appeared to be no set procedure for transferring civilian cases from anti-terrorism courts (ATCs) to military courts. This concern was amplified by reports from some accused individuals who claimed that no eyewitnesses were present during their trials. These gaps in procedural transparency fueled further skepticism among the judges regarding the legitimacy of the military court verdicts.
Government’s Position and Defence
The government’s counsel maintained that military trials are not in violation of fundamental rights, as they fall outside the jurisdiction of Article 175. The counsel also emphasized that military courts do not require the same level of judicial independence as civilian courts, given that their primary function is to determine guilt based on established military law.
Additionally, the council dismissed concerns raised on social media about the credibility of these trials, arguing that online speculation should not dictate judicial discourse. Justice Hilali, however, expressed dismay over the perception that her questioning implied political bias. She insisted that her queries were strictly legal and aimed at understanding the broader impact of military trials on civilian justice.
The Public’s Right to Know
Justice Rizvi raised another significant point regarding public awareness. If the military trials were conducted with full procedural transparency, he argued, then there should be no reason to withhold details from the public. He suggested that making these records public would help expose those responsible for the May 9 attacks and prevent misinformation.
Despite these arguments, the government insisted that such disclosures were an administrative matter and not within the judiciary’s purview.
Legal and Constitutional Implications
The Supreme Court’s approach to this case has highlighted broader concerns about civil-military relations and judicial oversight in Pakistan. Military trials of civilians have long been a contentious issue, with human rights organizations arguing that they undermine the principles of fair trial and due process.
Historically, Pakistan has witnessed multiple instances where military courts were used to try civilians, especially in cases related to terrorism. While the government defends this practice as a necessity for national security, critics argue that it erodes civilian judicial authority and grants unchecked power to military tribunals.
Comparative Analysis: Military Courts vs. Civilian Courts
A comparison of military courts with conventional civilian courts reveals stark differences in legal procedures and judicial independence. Civilian courts operate under the principles of open justice, where trials are conducted transparently, and defendants have access to legal representation and appeals. In contrast, military courts often operate behind closed doors, with limited avenues for appeal.
The Supreme Court’s reluctance to examine the military court procedures in detail suggests a cautious approach, perhaps to avoid setting a precedent that could be seen as endorsing military trials for civilians.
Future Implications and Recommendations
The outcome of these intra-court appeals will significantly impact the legal landscape of Pakistan. If the Supreme Court upholds the government’s position, it may pave the way for expanded use of military courts for civilians. On the other hand, if the court reinforces its earlier ruling, it could serve as a milestone in restoring judicial supremacy over civilian trials.
Legal experts suggest that instead of resorting to military trials, Pakistan should strengthen its anti-terrorism courts to handle such cases efficiently within the civilian judicial framework. Establishing a clear legal mechanism for transferring cases between different courts and ensuring due process for the accused would help in maintaining the balance between national security and fundamental rights.
Conclusion
The Supreme Court’s decision to return the military court documents rather than scrutinize them in depth underscores the judiciary’s cautious stance on this highly sensitive issue. The debate over military trials for civilians continues to raise important questions about judicial independence, transparency, and the rule of law in Pakistan. As the case progresses, it will serve as a litmus test for the country’s commitment to upholding constitutional principles in the face of national security concerns.
