The verdict allows for extrajudicial killings by legalising military courts
Today, 5 August 2015, will be remembered as a black day in the constitutional history of Pakistan. It will be commemorated as a sad day, a day when the apex court validated military rule once again. The establishment of military courts has been upheld by a majority ruling (11-6 votes) of the 17-member Supreme Court bench. The judgment was reserved on 26 June and was read out by the Chief Justice on August 5.
The Parliament had earlier passed the 21st Amendment and the Pakistan Army Act, 1952, to establish these special courts after the massacre in the Army Public School on December 16, 2014. The government had cited military courts as a necessary evil that the nation cannot do without.
As a result of the judgment, military courts are empowered to try militant suspects until February 2017. The government has promised to use this time to reform the broken civilian justice system.
This verdict endorses a virtual suspension the constitution by way allowing parallel judicial system of basic human rights of equality before law and right to fair trial. The mass hysteria that ensued post Peshawar carnage had clouded the conscience of the masses who are terming the judgment to be step in the right direction. Allowing military to adjudicate the civilians who are labeled as terrorist is in fact a suspension of the basic human rights; the rights that cannot be taken away even while the constitution is held in abeyance. Denying the right to life to a person, be it a terrorist or otherwise, without following due process is extra judicial killing per se.
The verdict of the 17 member bench allows the extra judicial killing by handing the powers of trials through summery proceedings. The guarantee as provided under constitution of Pakistan, Universal Declaration of human rights and UN ICCPR cannot be taken away arbitrarily.
A group of United Nations independent experts on extrajudicial killings, torture, and involuntary disappearances had, on April 15, expressed their reservation on military courts in Pakistan (view release here). According to the UN experts,
“the administration of justice through military tribunals raises serious questions, particularly in terms of access to justice, independence and impartiality of the court, and respect for the fair trial rights of the accused. Military tribunals should have jurisdiction only over military personnel who commit military offences or breaches of military discipline, and then only when those offences or breaches do not amount to serious human rights violations, and they should never have the power to impose the death penalty.”
The Pakistan Army (Amendment) Act, 2015, now validated by virtue of the judgment, provides that the military shall have the jurisdiction to court-martial militants who are “claiming or are known to belong to any terrorist group or organization using the name of religion or a sect”. While the Constitutional Amendment has allowed the military to take over the function of the Judiciary legally, grave questions that arise cannot be wished away. For instance, how can military generals, with no training in law, try civilians and sentence them to death? The verdict is tantamount to allowing a butcher to perform surgery on the chronically diseased.
The creation of parallel systems within the justice system, however frayed it maybe, not only defeats the provision of the right to fair trial, as provided in ICCPR Articles 14 and 16, it is also against the fundamental right of fair trial and due process as enshrined in Article 10A of the Constitution of Pakistan. After a summary proceeding, a military court can award the death sentence on the slimmest evidence. The accused will thus be denied due process and fair trial, a fundamental right under the Constitution of Pakistan.
As if expecting a barrage of criticism, the Court has retained its authority as the appellant body. The judgment states, “Any order passed, decision taken or sentence awarded under the Pakistan Army Act, 1952, as amended by the Pakistan Army (amendment) Act 2015, are also subjected to judicial review by the High Court and this court, on the ground of being coram-non-judice, without jurisdiction or suffering from a mala fides including malice in law”.
This is not the first time that such regressive steps have been taken in Pakistan. Earlier, in 1977 and 1998, military courts were established, which were subsequently termed unconstitutional and struck down by the Supreme Court of Pakistan. However, the tragedy this time is that the Judiciary has served as an accomplice and has allowed the military courts to function, bringing down the last hurdle in the path of these quasi-judicial bodies.
The argument that dire times need dire laws has been used time and again by the regime in power to make the case for military intervention in the affairs of the State. The establishment of a parallel judicial system with a sunset clause of 2 years will do little to curb the menace of terrorism. Historically too, military courts have been notorious for heralding dictatorship, for instance in the years 1977 and 1998. It then becomes the whim of the military dictator to stay in power as long as he wants.
In the famous case of Sheikh Liaquat Ali (PLD 1999 Supreme Court 504) a full bench of the Supreme Court, headed by then Chief Justice Ajmal Mian, had declared as unconstitutional and illegal the setting up of military courts. The judgment states that the civil authorities, as well as the security forces, cannot act outside the parameters and limits enshrined in the Constitution.
The military is already holding thousands of civilians in detention without trial. It is unclear if some of those detained will face military courts. Earlier, on April 16, the apex court had suspended executions of six militants who were awarded the death sentence by these military courts. Rights activist and Right Livelihood Award Laureate Asma Jehangir filed the case on behalf of the Supreme Court Bar Association (SCBA), after the Army Chief, General Raheel Sharif, had ratified the death sentence to six militants, and life imprisonment to one, which was decided upon by the military courts. The Supreme Court also observed that the constitutional guarantees under Article 24 of the Constitution, i.e. to be treated as equal before the law and to be entitled to equal protection of the law, are not available to militants, though it is available to a criminal. This is a novel idea, but the court did not expound on who is to be considered a militant and who is to be classified as a criminal. The ambiguity in the term “terrorism in the name of religion or sect” will create legal lacunae defeating justice.
Justice Isa, who has written a dissenting opinion on the judgment, remarked that the vagueness of the definition and the lack of detail in the definition clause give rise to monumental jurisdictional and constitutional problems. The defense lawyer can easily argue that the government is not justified in sending the case to the military court. A long battle of jurisdiction will thus ensue proving the whole exercise to be futile.
The anti terrorism court has suffered a similar fate. Had the parameters been clearly defined in the Anti terrorism Act, 1997, the situation would not have worsened to the level where the State strongly felt a need to establish parallel legal system of military courts.
Prime Minister Nawaz Sharif’s Special Assistant for Law Ashtar Ausaf Ali was reported to have said that, within the two years of the operation of military courts, the other justice institutions would be strengthened. Prosecution will be improved, evidence collection will become better, and circumstances will have improved. Perhaps the Minister has found a magic wand and will be able to fix the institutions that have been awaiting reform for the last 68 years, since the country’s birth.
The decision has disappointed many lawyers and human rights activists who had been on the front line during the lawyer’s movement. They have termed the decision as back to square one. Fair trial and equality have come to naught because of the judgment. The courts appear to have outsourced “justice” to the military, leaving the people to fend for themselves.
Justice Jawad has observed in his dissenting note, “As a constitutional principle it must be kept in mind that the power vested in and exercisable by the court are not a matter of parliamentary grace or sufferance, but are granted for the purpose to protect the people against excesses, inter alia, of State organs and functionaries.”
The principles of trichotomy of power, equality before law, supremacy of law, and independence of judiciary have been thrown on the back burner, with the pretext of dire times. The proponents of the “doctrine of necessity” tend to forget that, even in times of war, American courts didn’t allow the establishment of the military court. The US Supreme Court in Hamdan vs Rumsfeld, 2006, held that the military commission set up by the President to try enemy combatants lacked the power to proceed because their structure and procedure violated the uniform code of military justice and the Geneva conventions.
Instead of regaining the faith of the people in the judicial process, the court is ceding its power to the military. The judgment, while citing the necessity of regularizing the military courts, fails to state how it will reform the criminal justice system. Passing the buck to the military and expecting things to get better all by itself is not a solution.
The Court should not be allowing Parliament to make amendments against the basic framework of the constitution. The illegality of such an amendments cannot be overlooked citing necessity. Making laws or Amendments that contradicts the principles of democracy or conflicts with the independence of the judiciary cannot be part of the powers of elected representatives.
