A threat to judicial independence in Pakistan

The Pakistan Senate has passed a resolution faulting the recent decision of a 5-member bench of the Supreme Court that invalidated the trial of civilians by military courts. Details here. The Express Tribune reports:

The resolution tabled in the upper house said that “prima facie an attempt has been made to rewrite the law by impinging upon the legislative authority of parliament”.

“The Senate of Pakistan calls upon the apex court to reconsider its decision, urging alignment with the national security paradigm and sacrifices of the martyrs in order to address the concerns raised regarding the ramifications of the judgment on the security and stability of the nation,” it read.

It stated that the invalidation of the jurisdiction of army courts is likely to facilitate vandals and abettors of terrorism and anti-state activities. Military courts have played a pivotal role in delivering justice, particularly concerning acts of terrorism, often instigated by neighbouring adversaries within Pakistan’s borders.

The resolution further said that it resonated with the concerns and sentiments expressed by various stakeholders in particular and the public in general, regarding the SC’s judgment, taking exception to overriding an Act of Parliament, which was well within the previous and existing scheme of the constitutional and legislative framework and duly enacted under the legislative competence of the parliament.

It reiterated that the trial of those accused of violence against the armed forces under the Army Act “is an appropriate and proportional response in line with Pakistan’s existing constitutional framework and statutory regime”.

Within the country’s constitutional framework, the trial of individuals accused of anti-state vandalism and violence under the Army Act serves as a deterrent against such acts.

Firmly standing with the families of martyrs, who have made significant sacrifices for the country, and have expressed feelings of insecurity and treachery due to this decision, the resolution stated.

It fully endorsed the concern of the families of martyrs that the absence of military court trials is likely to encourage or embolden those responsible for acts of terrorism due to the lack of stringent justice in regular courts.

It stated that noting with concern that judgment annuls the sacrifices made by martyrs of the armed forces, civilians and law enforcement agencies in combating terrorism.

The resolution noted that the military courts have played a significant role in addressing terrorism by ensuring that those responsible for terrorist acts are brought to justice.

‘Abandoning the spirit of martyrdom’

However, this judgment while abandoning the spirit of martyrdom, grants lenient option to terrorists, anti-state actors, foreign agents, and spies to be tried in normal courts.”

The resolution further said that the apex court “has not taken into consideration the existing procedures which make it abundantly clear that the sentences given by military courts are not arbitrary and are conducted following due process and formalities”.

The case is pending consideration by an expanded Supreme Court bench. Thus far, no persuasive reason has been given why the offenses at issue could not be tried in civilian courts. The country has been ineffectual for years in upgrading its civilian courts and reducing backlogs and delays. Human rights jurisprudence disfavors the trial of civilians in military courts.