Pakistan’s ranking has sharply declined on rule of law index in recent years which connotes that Pakistan’s courts are not properly providing justice to people. According to World Justice Project latest report, Pakistan was globally ranked at 124 out of 139 jurisdictions on rule of law index. Regionally, Pakistan ranks 5th out of 6 countries in South Asia as per rule of law index. This scenario raises serious concerns on jurisprudence of Pakistani courts and capacity of prosecution authorities due to low conviction rate.
However, military courts remained most effective in dealing with matters of national security and cases of terrorism due to their speedy trial and highest conviction rate. Military courts were endorsed by superior courts in past which assisted state authorities in counter terrorism efforts.
Ironically, Supreme court gave verdict against civilians’ trial in military courts on 23 October, 2023 which will have unintended and far-reaching consequences. Other than legal aspect, we can analyze implications of this verdict in the milieu of Pakistan’s peculiar national security challenges. Pakistan is facing threats emanating from traditional and non-traditional hostile elements.
Exempting civilians from trial under offenses of Army Act just because of 9 May cases will have implications for our national security. Globally, key areas related to national security are dealt by military laws of concerned countries. Offenses related to espionage, collaboration with foreign elements, anti-state activities, acts to sabotage counter terrorism efforts and involvement in any act of attacking military installations come under jurisdiction of military laws.
Investigation and prosecution related to national security matters needs specialized skills and speedy justice system. When umbrella of military courts under Army Act is dissolved for trial of those offenses which are not addressed by any other law, a vacuum will be created in prosecution of those elements who are found involved in anti-state activities.
Security forces gave sacrifices to counter terrorism but due to lacunas in legal system, these counter terrorism efforts were hampered as sentences of many hardcore terrorists were overturned by civil courts. Terrorists have celebrated this judgment and issued statements on it which is a matter of deep concern.
Anyone who is not regular employee of military organization, retired Army personnel and any national or foreigner who commits crime against national security of Pakistan are exempted from jurisdiction of military courts after apex court’s judgement. It will damage deterrence of law in Pakistan.
Large number of civilians are working in military organizations who have access to sensitive information. If any civilian working in military institutions is found involved in anti-state activities, then crisis will be created over their trial. Foreign hostile elements can exploit this situation against Pakistan. If people working in sensitive institutions will be exempted from legal action in case of their involvement in anti-state activities, then hostile elements can easily exploit them.
In recent past, we have seen propaganda and smear social media campaign against national institutions where even few retried military personnel were involved who peddled foreign agenda to destabilize Pakistan for their vested political and economic interests. Such decision will embolden those elements who are involved in propaganda against state institutions. Such developments demoralize morale of LEAs.
There is a general impression that Judges of civil courts including Anti-Terrorist Courts (ATCs) feel reluctance to hear high profile cases on pretext of security threats while judges of lower courts face pressure in high profile political cases. Many legal experts have given opinion that Supreme court has overlooked many details in hasty proceedings of this case.
Entire jurisprudence of specialized courts is overturned just because of one issue of 9 May trials while constitutional protection and superior courts endorsement is available to military laws. This is a solid case for federal government to file appeal against this verdict. CJP will form larger bench for hearing of this case because right of appeal is given in cases of 184/3 after endorsement of Practice and Procedure Act by SC.
Parliament, executive and judiciary function as core organs of state. Legal support is highly required in matters of national security along with public and financial support. Supreme court should realize gravity of matter at hand and detailed hearings should be held to decide this matter. Military courts effectiveness in counter terrorism matters and national security matters cannot be denied. Giving blanket exemption to civilians from offenses defined under military law without defining its parameters can prove consequential for Pakistan’s security.
