ISLAMABAD:
After the convictions of PTI activists by military courts, all eyes are on the constitutional court that will decide the legality of this form of justice.
The Constitutional Chamber, with a new six-month extension, is likely to resume hearing the case before the military courts shortly after the winter holidays.
On October 23 last year, the largest court, headed by Justice Ijazul Ahsan, declared that trials of civilians in military courts are unconstitutional. Subsequently, the Government filed intra-judicial appeals against the TS ruling.
The larger court, headed by Justice Sardar Tariq Masood, stayed the Supreme Court ruling and allowed trials of civilians in military courts. Recently, the Constitutional Chamber allowed military courts to announce decisions.
Interestingly, the court did not refer to any legal provision of the Constitution in its interim order. So far, the Constitutional Chamber has failed to generate a significant impact as it has not ruled on a legal issue.
However, the government is satisfied with the performance of the Constitutional Chamber. That is why it got a six-month extension by a majority of seven to six members of the Judicial Commission of Pakistan (JCP).
However, the PCJ majority wanted all SC judges to be nominated to the constitutional courts. With this in mind, lawyers are skeptical whether the current constitutional court will decide the military courts case expeditiously.
On the other hand, the United States, the European Union and the United Kingdom are raising their voices against the trials of civilians in military courts. Lawyers believe that it is not easy for the constitutional court to uphold these trials after the international reaction. During the tenure of former CJP Umar Ata Bandial, the government told the SC that no long sentence would be imposed on the accused. Judge Bandial hoped that the right of appeal would be granted to suspects tried in military courts. However, this was not considered.
Lawyer Abdul Moiz Jaferii says that on May 9, 2023, rioters belonging to a political party acted in a criminal manner and damaged public property.
“Instead of being prosecuted for this crime with due process in civil courts, we saw the target of their ire, a government department, decide that it was going to give an appropriate response,” he says. “The army proceeded to act as judge, party and executioner with these individuals,” he adds.
Jaferii also says that the Supreme Court declared these military trials and the military’s detentions of civilians illegal. “Then we saw a new law allowing a fresh appeal against Supreme Court decisions, and that pronouncement was stayed. Since then, we have seen absolute deadlock and no recognition of the urgency involved here. Justice Shahid Waheed was in the appeals court, and noted that the scope of an intra-judicial appeal to the Supreme Court was very limited.”
The lawyer remembers that the next time a court met, Judge Waheed was absent.
“During the tenure of Justice Qazi Faez Isa, Justice Aminuddin led this court and achieved absolutely nothing other than allowing the military more and more space to do what they wanted as interim measures. Then came the 26th Amendment and today it has borne fruit “.
He claims that a court, unwilling to decide fundamental freedom issues, allowed the military to announce conditional sentences, which have been duly handed down with great severity and warning.
Jaferii goes on to say that this is not justice. “It is the usurpation of due process allowed by our own Supreme Court. It is a lesson that is taught to us all through the barrel of a gun. This is an example of the warnings that lawyers issued about the violations of fundamental rights that can occur after the 26th Amendment, when the executive is allowed to capture the judiciary.
On the other hand, Hafiz Ehsaan Ahmad says that the trial of civilians before military courts for violation of military laws has never been the subject of discussion or controversy since 1975 in Pakistan. “All political parties, including their chiefs, supported such trials in military courts on different occasions. It is also important that no foreign government has ever commented on such military trials under the Pakistan Army Act 1952. It is also important that after the ruling of the In the General Field Martial Court, the accused has the right to appeal under the Pakistan Army Act After being aggrieved, the accused can challenge the sentence before the high court under Article 199. of the Constitution, and then before the Supreme Court under Article 185. as a matter of law, and finally under Article 188 of the Constitution in the form of review.
He further explains that since 1972, Pakistan’s military courts have tried 1,875 civilians for crimes under the Pakistan Army Act and the Official Secrets Act. He adds that of them, only 180 civilians were tried by military courts between 2018 and 2022 during the PTI government’s tenure.
“Since then, the convictions of the accused had been periodically challenged in the high courts of Pakistan, and more often than not, these sentences were upheld by the high courts and the supreme court.
He said that statements by the United States, the European Union and the United Kingdom Foreign Office on the military trials of civilians, in particular on the announcement of the sentences of 25 people handed down pursuant to a Supreme Court order dated 13 December 2024, are unnecessary.
“It appears to be only a matter of public opinion and a matter of interference in the internal affairs of Pakistan. This is particularly true since the Supreme Court of Pakistan, as per its judgment of 1975 and thereafter, repeatedly held in various decisions that the trial of civilians for violating military laws, including the Pakistan Military Act, 1952 and the Official Secrets Act, 1923, was not against fundamental rights He goes on to say that the court further decided that it was not against due process of law or. “It was neither discriminatory nor a violation of any transparency.” Accordingly, it was not against the concept of a fair trial, and the present sentences have also been announced by military courts in compliance with the orders of the Supreme Court issued on December 13, 2024.
It also clarifies that the Supreme Court is the ultimate arbiter in the constitutional and judicial system of Pakistan. “The issue of prosecution of civilians by military courts is still pending in the Supreme Court, and even the recently announced sentences will be subject to the final decision of the Supreme Court.” “There is no need to make immature statements at this time and we should wait for the final result.”
