EDITORIAL: Sadly but unsurprisingly, a seven-member Constitutional Bench, by a margin of 5-2, of the Supreme Court, established under the controversial 26th Amendment, has restored key provisions of the Pakistan Army Act (PAA) to allow for the trial of civilians in military courts. The bench was hearing an intra-court appeal filed by the government seeking review of its October 2023, 5-1 verdict.
The majority judgement’s primary concern, in the present instance, did not appear to be the full panoply of fundamental rights enshrined and envisaged in the Constitution. Though it emphasised in a rather contradictory assertion the need for appellate oversight, saying the right of appeal before an “independent forum”, is basic to the doctrine of due process and the right to a fair trial under Article 10 of the Constitution.
The majority judgement also said the limitation period for filing an appeal in a high court will begin once amendments to the PAA are notified. This means if the executive does not make the necessary amendments, the civilian suspects of May 9 events, including founder of the main opposition party the PTI, Imran Khan, won’t have the right to appeal. The whole idea of the rule of law has been turned on its head.
It is worth recalling that back in 2015 even those who had taken up arms against the state could not be tried in military courts for the simple but powerful reason the Constitution did not allow it, and the witnesses were too afraid to testify against them in civilian anti-terrorism courts.
Hence, to make that possible a constitutional amendment was enacted with a two-year sunset clause, at the conclusion of which another year’s extension was sought by the powers that be and given by parliament. Also, those convicted by military tribunals had the right to go into appeal before relevant high courts, which is missing in the present instance.
Enemies of the state who had killed thousands of Pakistanis, both civilians and soldiers, had a better protection than regular people accused of having vandalised military facilities. In forfeiting their right to a fair trial, the Constitutional Bench has drawn sharp criticism from the legal fraternity.
The Karachi Bar Association (KBA) immediately issued a statement, expressing its concern over different aspects of the verdict, emphasising that it is not merely a judicial misstep; it is a clear abdication of the judiciary’s constitutional role as a check on the executive’s powers.
Furthermore, said the KBA, no constitutional interpretation can justify military trial of a civilian, and that such trials are inherently incompatible with constitutional guarantees, international law, and the universally recognised right to a fair trial.
Other bar associations, opposition parties, and civil society groups, too, are likely to refuse to accept what the KBA described as “judicial surrender” before “creeping authoritarianism.” Unfortunately, we have been there time and again since the days of chief justice Muhammad Munir in the 50s, leading to never-ending political crises.
It seems the people are no longer willing to let the rule of law be undermined. Things probably will get worse before they get better. Last but not least, that Justice Ayesha A. Malik has lodged a formal complaint to CJP about the non-publication of her dissenting order in the reserved seats case is indeed a development that has certainly added to the seemingly widespread concerns about the Constitutional Bench of Supreme Court’s verdict.
Copyright Business Recorder, 2025
Comments
Comments are closed for this article.