A debate has started as to whether the Supreme Court and the federal government are trying to find a ‘middle way’ with regard to the case against the trial of civilians in military courts.
This is not going to be an easy task though – both for the apex court as well as the government (the military establishment) – to reach a way out wherein legislation would be carried out to give right of appeal in high courts against military court verdicts.
Earlier, the military establishment did not pay heed to the suggestion put forward by some legal minds close to it to allow the right of appeal to convicts.
Now, it is to be seen whether Attorney General for Pakistan Mansoor Awan would succeed in convincing the relevant authorities to the effect.
Suppose, if the powers that be agree to the suggestion, will the apex court close the case and end proceedings?
This is the million-dollar question being debated.
Moreover, it was witnessed during the hearing in the case against the trial of civilians in the military courts that the judges were not satisfied over the fairness of trial afforded to an accused in the military courts.
That was evident from the observation made by Justice Ayesha Malik during the proceedings, saying: “Military trials lack due process [of law].”
Aitzaz Ahsan, one of the petitioners, said that giving the right of appeal against the military courts’ decisions would not be enough.
However, a lawyer says that if the apex court declares that the civilians cannot be tried in the military courts, direct confrontation may start between one section of the judges in the Supreme Court and the military establishment.
The apex court has already been divided into two camps.
The lawyer adds that the stance taken by the petitioners and the critical observations made by the judges regarding the military trials may have serious consequences on the Kulbhushan Jadhav case.
That is to say the Supreme Court is walking a tightrope.
The lawyer says that the judges need to be careful while giving observations on the military trials.
Hafiz Ahsaan Ahmad, who witnessed the bench proceedings on Wednesday, said that it had been observed in various judgments of superior courts in the past that the right of appeal was an essential element under the criminal administration of justice, and the same should have been applied here in such proceedings.
He added in vacuum, thereof, the superior courts allowed the sentences to be challenged under the writ jurisdiction of Article 199 of the Constitution.
He said that as the Supreme Court had observed a way out, it was important for the federal government too to avoid any contrary judgment and work out a method allowing the military court jurisdiction to remain intact over civilians.
For this, Ahmad suggested, the government should issue an ordinance or immediately pass an amendment to have a right of meaningful appeal by amending Section (2)(d) read with Section 133 of the Army Act, 1952, with the exclusion of the jurisdiction over regular military employees and for those civilians who would have been given sentences by the military courts.
Ahmad also said that the right of regular appeal would not be a new phenomenon as earlier in recent times, the federal government issued this exercise of effective review in the Kulbhushan case, through an ordinance to meet the satisfaction criteria of the ICJ, adding that the same principle could be applied here.
He also suggested having a due process of law, saying further amendment should also be made to allow civilians to have the right to choose their own choice of counsel and the proceedings for the trial would not have been held in-camera, but with the permission of the presiding officers, certain people, and a relative of the accused would have the access to watch the proceedings of trial.
He also said that it is a settled principle of criminal justice that neutrality and impartiality and due observance of the rights given as fundamental in the Constitution and the rights of accused in criminal justice system should be visibly observed to make the proceedings credible.
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