“Not only those military courts have already started functioning, they have sentenced six people to death as well. This is despite the fact that legality of such courts is still under challenge before the Supreme Court of Pakistan and on this basis the Honourable Supreme Court has suspended the execution of these death sentences until the fate of military courts is finally decided.”
It is true that military courts have been provided constitutional cover through the 21st Constitutional Amendment, yet it doesn’t mean they are absolutely immune from the Supreme Court declaring them unconstitutional, on the basis that such an amendment is contrary to the basic structure of the Constitution of Pakistan 1973 (hereinafter Constitution), and the fundamental rights guaranteed therein.
Military courts already existed in Pakistan under the Army Act 1952 but to deal purely with Army-related matters. The recent debate in favour of military courts’ powers to try terrorists emerged soon after the horrific Peshawar carnage at the Army Public School Peshawar in which more than 140 people, including students and teachers, were killed by the terrorists.
The manner in which the country’s leadership has been making important decisions, which shape the nation’s destiny, is evident from the fact that within 3 weeks of the Peshawar incident, all political parties developed a ‘consensus’ to amend the Constitution of Pakistan 1973 and the Pakistan Army Act 1952 through the Constitution (Twenty-first Amendment) Act 2015 and the Pakistan Army (Amendment) Act 2015 respectively.
By amending the Army Act, the jurisdiction of military courts has been extended to include military trial of terrorists. And, a precise list of those “terrorists” has been provided in Section 2 of the Pakistan Army (Amendment) Act 2015.
Though the rules of evidence in proceedings before the military courts — according to section 112 of the Army Act 1952 — would be same as those applicable to criminal courts, yet those trying terrorists would be the army officers. But, can they be independent? Given the fact that the prosecution in such cases would be carried out by their fellow officers, it’s a big question.
In other words, the ‘executive’ would be determining the guilt of such terrorists. This fact, along with the background in which these courts have been established as decisions were emotions-driven, leaves no doubt that the cardinal principles of criminal jurisprudence that a suspect is innocent until proven guilty, and it is for the prosecution to prove its case beyond reasonable doubt, would be undermined.
Thus, there were two main legal hitches in establishing the military courts:
First, they were contrary to the constitutional mandate of separating ‘Judiciary’ from ‘Executive’ under Article 175(3) of the Constitution;
Second, their operation would affect a person’s right to a fair trial and the due process that has been guaranteed under Article 10A of the Constitution.
To overcome these hitches, the Legislature introduced 21st Constitutional Amendment whereby they amended Article 175(3) prohibiting the application of it to such military trials and inserting Pakistan Army Act 1952 in the First Schedule of the Constitution, the result of which is that according to Article 8(3)(b)(i) of the Constitution, the fundamental rights, including right to a fair trial would not be applicable to the alleged terrorists tried by the military courts.
The Legislature, indubitably, has the mandate to amend the Constitution as per the Articles 238 and 239 of the Constitution, the future of military courts purely depends on the Supreme Court of Pakistan as it will decide as to whether or not the Legislature can suspend a person’s fundamental rights and can even make an amendment that is contrary to the basic structure of the Constitution, in particular its Articles 4, 8, 10A and 175. The moot point is that it is not only “terrorist’s fundamental right” which is being abridged but in fact it is of all the citizens and residents of Pakistan as potentially any of them could become a “terror suspect” for the state agencies.
In finding answers to these questions, the history and background of the said amendments can play a key role. It’s true that Pakistan’s legal system is in dire need of radical, modern reforms but to put the entire blame of acquitting terror suspects on judiciary is turning a blind eye to the real problem at hand i.e. ill-equipped and untrained security agencies, and a lethargic prosecution department.
The material difference is that this time the lawmakers have followed the constitutional route provided by Article 239 of the Constitution
It needs to be acknowledged that it was the same judiciary that had convicted those nearly 800 death row inmates for whom moratorium on death penalty was lifted immediately after the Peshawar incident. This very fact weakens the argument that courts have been setting the terrorists free, often given by the supporters of military courts.
In this respect, the true role of ‘Judiciary’ in deciding matters unbiased and purely in light of law and evidence, which are generally based on the maxim that it is better to let ten guilty men go free than to convict one innocent man, needs to be acknowledged and defended. When such maxim is appreciated, only then one can realise that it’s not be the ‘Judiciary’ but the shortfalls in the ‘Prosecution’ to be the real cause of poor conviction rate.
However, the intention behind introducing these amendments, as expressed by the lawmakers, has been the speedy trial of terrorists. But, this could have been achieved easily and effectively by setting up special courts with senior judges and experienced prosecutors — without amending the constitution and affecting the fundamental rights.
The other most-cited reason is that Pakistan is passing through extraordinary circumstances which demand extraordinary measures, but such reasoning is akin to invoking ‘the doctrine of necessity’ which has already been abhorred by the Supreme Court in many of its decisions. The material difference is that this time the lawmakers have followed the constitutional route provided by Article 239 of the Constitution which is essentially there to meet changing needs of the society; not adapting to which will render the constitution too rigid and too impracticable.
And that’s where the Supreme Court, being the custodian of the fundamental rights, would have to draw lines in balancing the legislature’s right to amend the Constitution, and also determining the extent to which it can go to amend it. The crucial question in determining such lines would be as to whether or not a ‘fundamental right’ guaranteed by the Constitution can be abridged at all even if it is through a constitutional amendment.
The author is of the opinion that the said amendments are unconstitutional on the basis that they are contrary to the right to have a fair trial and due process under Article 10A and the independence of judiciary under Article 175 of the Constitution; and should the lawmakers claim to have unfettered powers to amend the Constitution, then the sanctity attached to it cannot be guaranteed and in practice Constitution would be rendered merely a booklet of ten or twelve pages that can be changed with just a stroke of pen.