Former chief justice of Pakistan Jawwad S. Khawaja on Tuesday filed a petition in the Supreme Court seeking the declaration of trials of civilians through military courts as unconstitutional.
Filing the petition under Article 184(3) of the Constitution, he has made the Federation of Pakistan a respondent through the law, interior and defense secretaries, as well as the provincial chief secretaries.
Explaining that he did not seek to support or attack any political party or institution, the petitioner said the trials of civilians in military courts after the May 9 riots raised an important constitutional question involving fundamental rights that required adjudication. “The petitioner has no personal interest in this case and the relief sought is for the benefit of all citizens regardless of political affiliation,” read the petition, urging the Supreme Court to declare that court martial of civilians by military courts while ordinary courts were functional was unconstitutional.
The ex-CJP also sought the court’s declaration of sections 2(1)(d)(i) and (ii) of the Pakistan Army Act, 1952 as inconsistent with the fundamental rights conferred by the Constitution, pleading for them to be struck down. Questioning how “civilians who are not on active service can be subjected to trial by military courts for alleged crimes,” he submitted that they could not. “To the extent that such trial is contemplated by law, such law is unconstitutional and liable to be struck down,” he said, adding that court martials were only appropriate and lawful in the case of Army officers. “Their purpose is to maintain discipline within the forces. There is no basis on which they may be extended to civilians unless they are in active service,” he argued.
“It is unjustifiable for civilians to be subjected to a system of military discipline. They have not consented to the same. In the context of criminal prosecution and trial, court martial proceedings against civilians violate fundamental rights and do not enjoy protection under Article 8(3) of the Constitution,” read the petition. “The military, as part of the executive, cannot undertake trials as judicial power can only be exercised by the judiciary while the trial of civilians by military courts also infringes upon Article 175(3) of the Constitution and is contrary to the separation of powers,” it submitted.
Referring to the May 9 riots that saw PTI supporters allegedly ransacking military installations, he said that “any such alleged offenses by civilians may only be tried by ordinary criminal courts.” Emphasizing that every citizen was entitled to fair and due process, the petition submitted that this fundamental right, enshrined in Article 10A of the Constitution, was violated when civilians were court-martialed.
Noting that a fair trial required an “open hearing by a competent and independent forum and the right to counsel of choice,” the petition argued that these principles were compromised in military proceedings. Referring to various statements issued by the Army over trials in military courts, the petition stated that the language indicated “a view has already been formed by the Army authorities and military command that ‘irrefutable evidence’ exists in these cases.” In the presence of such a view, it said, it was not possible for the accused to “receive a fair trial from Army officers who operate under and are subject to the discipline of the Army authorities.”
It noted that the government had also not opposed this, adding that it appeared “likely that the list of civilians to be tried in military courts will increase given the resolution passed by the National Assembly.”
Referring to the Pakistan Army Act, 1952, the petition said that the present law only called for trials of civilians in military courts if they either seduced or attempted to seduce any person subject to this Act from their duty or allegiance to the government or committed an offense under the Official Secrets Act, 1923. It also noted that courts in Pakistan had previously declared attempts to “extend the jurisdiction of military courts to civilians as unconstitutional.”
Pointing to reports of several human rights violations during military trials, the petition submitted that such trials conflicted with Pakistan’s human rights obligations under international law. It called for the apex court to direct the respondents to maintain and furnish a list of all civilians in military custody and the details of where they were being detained. “Declare that any proceedings against civilians on the basis of the impugned sections are unlawful and direct that such civilians be transferred to the competent civilian authorities for appropriate proceedings before ordinary criminal courts,” argued the plea, adding that a restraining order against prosecutions of civilians in military courts should be passed as an interim measure.