As a Pakistani citizen, you would have encountered many new approaches ranging from politics to legal issues. No doubt, we have a written document named the Constitution of Pakistan 1973 which encompasses the procedures to be adopted to regulate every affair of the country. It is so articulated that it discourages discrimination of all forms. The long-debated concern in Pakistan now is the trial of civilians in military courts. It seems vague and unconstitutional. Military courts will undermine our judicial system and the rights of ordinary citizens, which were given by the constitution of Pakistan. It is a sheer violation of domestic and international laws to back the military courts. The civilian courts have a clean procedure to try anyone accused of something by exposing him to a procedure mentioned in the constitution. Several Articles of the Constitution grant everyone a right to appeal, have a counsel of lawyers by his own choice, and have a right to a fair trial. After adopting an elaborate or fanfare procedure, one can be convicted or released according to the facts of the case represented. The Peshawar High Court, in its two historical verdicts, stated that “proceeding before military courts were a complete prosecution show and accused/convicts were denied their fundamental right of engaging private counsel of their choice at their own expense.” (2020 PLD 1 PESHAWAR HC, 2019 PLD 17 PESHAWAR HC)

Contrary to the ordinary courts, military court procedure is murky. There were several examples where the accused was sentenced to death without giving a chance to represent his case. In April 2015, Sabir Shah disappeared from Lahore central jail. His lawyers and family did not know where he had gone. After five months, an ISPR press confirmed that the military court had awarded him a death sentence. The irony is his lawyers were unaware of the evidence used to convict his client. Another penury caused to the accused in the military courts is the right to appeal in civilian courts. Military court convicts are not allowed to appeal in civilian courts, which is against Article 10-A of the Constitution. It guarantees the right to a fair trial and due process of law. This includes the right to appeal against a court’s decision. The right to appeal provides an avenue for an accused dissatisfied with a court’s decision to have his case heard by a higher court. According to Justice Felix Frankfurter, former US Supreme Court Associate Justice, “The right to appeal is the guardian of all other rights.” Hence the importance of the right to appeal is sacrosanct.

Military judges do not possess legal background. They are military officers who are accustomed to the notion of Esprit de corps. The rigidity of the organizational rules submerges a pearl of individual personal wisdom and independent reasoning into group consciousness. For a military officer, personal liberty becomes a thing of the past. It is proverbial that a military judge cannot go against the high commands of one having blue blood in their veins. An article published by the University of Illinois

Press about a psychological study of a soldier affirms the mechanistic life of the military and the obligation to kneel before commands by referring to the remarks of a soldier about recruits in which he says, “At the beginning, they were individuals, no more cohesive than so many grains of wet sand. After nine months of training, they acted as a unit, obeying orders with that instinctive promptness of action which is so essential on the field of battle when men think scarcely at all.” As a deduction, replacing brute beasts in place of conscientious and impartial civil judges would likely create purulence upon the judiciary’s independence principles. Also, Principle 10 of the United Nations’ basic principles on the independence of the judiciary outlines, “person selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointment for improper motives.”

The debate over military courts began after the incidents unfolded on May 9. In haste, the national assembly passed a resolution favoring trying the civilians under the Pakistan Army Act, ATC, and combined penal code provisions. It will be remembered as an unfortunate event in a democratic country. The departure from democratic norms and bypassing civilian courts is not a panacea for any stability in a country.

Therefore, stretching the military courts over civilians is redundant on many grounds. In a democratic country, depending on military courts indicates mistrust in the civil judiciary and a stain on constitutional rights. The sole power being the investigator, judge, and prosecutor revolves around the army, which is uncharacteristic of a fair justice system. Country-renowned jurists, human rights advocates, and international bodies condemned this initiative to try civilians in military courts. The report published in 2016 by the International Commission of Jurists shows how controversial the notion of military courts is. It states that “the government and military authorities have failed to make public information about the time and place of their trials: the specific charges and evidence against the convicts: as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based.” Therefore, the government should respect the civil judiciary and empower it to safeguard the rights of the people.