|Asad Faizi
Civilian courts operate under established civil law procedures and are guided by the principles of openness, fairness, and due process. On the other hand, military courts often operate under different rules and procedures than civilian courts, with the primary aim of maintaining order and discipline within the armed forces. When these courts are used to try civilians, it raises significant questions about fairness, justice, and respect for human rights.
The military establishment in Pakistan has decided to try political workers, including the Chairman of Pakistan Tehreek-e-Insaf (PTI) – the most popular political party with over 70% support of the people of Pakistan – Imran Khan, in military courts. This article aims to delve into this issue, exploring its implications for society, democracy, and the rule of law, along with international perspectives and providing real-world examples of this practice.
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Historical Context: Military Courts and Their Evolution
Over the centuries, the role and jurisdiction of military courts have varied greatly depending on the cultural, historical, and political contexts. For instance, during wartime or periods of martial law, the use of military courts often expanded to maintain order and discipline. During such periods, civilians, particularly in occupied territories, might find themselves under the jurisdiction of these courts. This was seen, for example, during World War II when military courts were used by both Allied and Axis powers to try both military personnel and civilians.
However, in most democratic societies during peacetime, the role of military courts is typically limited to dealing with military offenses, with civilian courts handling the majority of legal matters. It’s when military courts begin to try civilians outside the context of war or martial law that concerns about human rights and due process become particularly salient.
Why Some Governments Resort to Military Courts for Civilians
There are several reasons why a government, particularly an autocratic one, might resort to trying civilians in military courts. Military courts often operate under different rules than civilian courts, including expedited trials and stricter punishments. This makes them an attractive tool for governments seeking to suppress political opposition quickly and decisively. In many autocratic regimes, the military has significant power and is closely aligned with the ruling government. This alliance allows the government to exert more control over the judicial process than it could in a more independent civilian court system.
The rules and procedures of military courts can allow the government to bypass certain elements of due process, such as the right to a fair trial or the right to appeal. This can make it easier to secure convictions against individuals the government perceives as threats. The use of military courts to try civilians can create a climate of fear, deterring others from opposing the government. This can be a powerful tool for maintaining control and quashing potential dissent.
The Autocratic Regimes’ Approach
Autocratic regimes have often been associated with the use of military courts to try civilians, typically as a means of suppressing dissent, quashing opposition, or circumventing civilian legal systems. Here are a few examples:
Egypt: After the military coup that ousted President Mohamed Morsi in 2013, the Egyptian military expanded the jurisdiction of military courts to try civilians. According to Human Rights Watch, between 2014 and 2018, over 15,000 civilians, including children, were referred to military prosecution in Egypt.
Syria: Under the regime of Bashar al-Assad, military field courts have been used to try civilians, particularly in the context of the ongoing civil war. These courts have been criticized for conducting trials that often last only a few minutes, with no lawyers present.
Thailand: Following the military coup in 2014, the junta expanded the use of military courts to try civilians for lese majeste (insulting the monarchy) and other national security crimes. The practice was ended in 2016, but during that time, hundreds of civilians were tried in military courts.
Zimbabwe: In the past, Zimbabwe has used military courts to try civilians, particularly during times of unrest or perceived threat to the state.
Myanmar: Since the military coup in February 2021, there have been reports of civilians, including protestors and political dissenters, being tried in military courts. These trials have been widely condemned by international observers for their lack of due process and transparency.
Algeria: Over the years, Algeria has used military courts to try civilians, particularly during its civil war in the 1990s. This practice has been criticized by human rights groups due to concerns about fair trials and the use of torture.
Bahrain: Bahrain has used military courts to try civilians, particularly following the Arab Spring protests in 2011. These courts, known as National Safety Courts, have been criticized by international observers for their harsh sentences, lack of due process, and allegations of torture.
Libya: Under Muammar Gaddafi’s regime, Libya tried civilians in military courts, particularly during periods of political unrest. These courts were criticized for their lack of independence and failure to uphold basic standards of due process.
The International Perspective
International law provides several protections and standards for fair trials, many of which may be at risk if civilians are tried in military courts. Here are some relevant international rules and laws that could potentially be violated:
Universal Declaration of Human Rights (UDHR): Articles 10 and 11 set out basic principles for a fair trial, including the presumption of innocence, the right to a public hearing by an independent and impartial tribunal, and the right to legal defense. If these are not upheld in military courts, it could be a violation of the UDHR.
International Covenant on Civil and Political Rights (ICCPR): The ICCPR also sets standards for fair trials. Article 14 guarantees the right to a fair and public hearing by a competent, independent, and impartial tribunal established by law.
Geneva Conventions: While the Geneva Conventions allow for military courts in certain circumstances, such as during armed conflict, they also establish strict standards for such courts. If military courts do not adhere to these standards, it could constitute a violation.
Regional Human Rights Treaties: Various regional treaties, such as the European Convention on Human Rights (ECHR), the African Charter on Human and Peoples’ Rights, and the American Convention on Human Rights, provide protections for fair trials. Violations of these protections could potentially occur if civilians are tried in military courts.
United Nations Basic Principles on the Independence of the Judiciary: These principles state that everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts.
The Impact on Society
Trying civilians in military courts has far-reaching societal implications. At its core, a robust justice system builds confidence among the citizenry, fostering a sense of security and societal order. When this system is manipulated, particularly when it strays from established norms like trying civilians in military courts, it can lead to widespread disillusionment.
People’s trust in their government and the justice system is paramount for societal stability. This trust is predicated on the belief in fair and impartial trials, a cornerstone of justice.
When civilians are subjected to military trials, which often lack transparency and procedural fairness, it can lead to a significant erosion of public trust in the justice system and, by extension, the government itself.
The use of military courts to try civilians can foster an atmosphere of fear and intimidation, particularly when used to suppress political dissent. People may be less likely to voice their opinions or engage in political activism for fear of retribution, stifling free speech and political participation.
The Impact on Democracy
The health of a democracy is closely tied to the fairness and independence of its justice system. Using military courts to try civilians can have several detrimental effects on a country’s democratic fabric. One of the fundamental tenets of a democracy is the separation of powers, where the judiciary operates independently of the executive and legislative branches. This separation is crucial to prevent abuses of power and maintain checks and balances. However, in regimes where the military wields substantial influence, this separation can become blurred when civilians are tried in military courts.
Democracies depend on the free exchange of ideas, political pluralism, and the ability to dissent. Using military courts to suppress opposition can restrict these political freedoms and undermine democratic values.
The Rule of Law and Supremacy of the Constitution
In terms of legal principles, trying civilians in military courts can have profound implications for the rule of law and the supremacy of the constitution.
The rule of law, a principle signifying that all individuals, institutions, and entities are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, stands as one of the bedrocks of democratic societies. However, this crucial principle risks being undermined when civilians are tried in military courts.
The use of military courts for civilians often involves bypassing legal safeguards present in civilian courts, including the right to a fair trial, the right to legal representation, and the right to appeal. This can lead to miscarriages of justice and undermine the rule of law. The potential lack of transparency and accountability in military trials can foster a culture of impunity, with individuals and institutions believing they are beyond the reach of the law. This erodes the rule of law, enabling potential abuses of power and human rights violations.
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In democratic societies, the constitution is the supreme law of the land, outlining the fundamental rights of citizens and the limits of governmental power. Trying civilians in military courts can challenge the supremacy of the constitution in several ways.
Constitutions typically contain provisions for the rights of individuals, including due process rights, such as the right to a fair and public trial. When civilians are tried in military courts, these constitutional rights risk being violated. The constitution often outlines the division of powers and responsibilities among various branches of government, including the judiciary. Using military courts for civilians threatens this balance, concentrating more power in the hands of the military and executive branch.
Military Courts in Pakistan
If the Pakistani military establishment were to try political workers in military courts, this would have far-reaching implications for the nation’s political climate, democratic process, and rule of law.
Trying political workers in military courts could potentially undermine the democratic process. Such an act might lead to increased intimidation of opposition parties and reduced political freedom, thus stifling debate and dissent. It can set a dangerous precedent where political differences are addressed by military trials rather than democratic dialogue and process. The use of military courts for trying civilians often comes with a lack of due process and fair trial guarantees. If political workers are subject to such proceedings, it could lead to an infringement of their fundamental rights as enshrined in the constitution, including the right to a fair trial and freedom of expression.
The shift of judicial authority from civilian to military courts for political matters can undermine the civilian government’s authority. It can disturb the civil-military balance and concentrate more power within the military establishment, posing risks to the separation of powers, a key democratic principle. The trial of political workers in military courts could risk politicizing the military itself. The practice could further erode public trust in both the judicial system and the political process. The lack of transparency and due process in military courts might lead to skepticism about the fairness of trials, while targeting political workers could cause the public to lose faith in the democratic process.
Such a decision could also lead to international backlash. If political workers were tried in military courts, it could be seen as a violation of international legal standards, leading to criticism from international bodies like the United Nations and potentially damaging Pakistan’s diplomatic relations.
The decision to try political workers in military courts will have severe implications for Pakistan’s democracy, rule of law, and international standing. Such a step would likely be seen as a serious setback to democratic development and human rights in the country.
Recommendations and Conclusion
In light of the implications discussed above, it is crucial to safeguard the principles of fairness, justice, and human rights by ensuring that civilians are tried in civilian courts rather than military courts. To address this issue effectively, the following recommendations are proposed:
- Uphold the independence of the judiciary: It is essential to maintain a strong and independent judiciary that operates without interference from the military or executive branches of government. This includes respecting the separation of powers and ensuring that civilian courts have jurisdiction over civilian matters.
- Strengthen civilian courts: Invest in the capacity-building of civilian courts to handle a wide range of cases effectively. This includes providing training to judges, prosecutors, and defense lawyers to ensure they have the necessary expertise and resources to uphold due process and fairness.
- Promote transparency and accountability: Implement measures to enhance transparency in the judicial process, ensuring that trials are open to public scrutiny and conducted in accordance with established legal procedures. Establish mechanisms for monitoring and oversight to hold judges and court officials accountable for any misconduct or violations of human rights.
- Educate the public on their rights: Conduct awareness campaigns to educate the public about their fundamental rights, the importance of due process, and the potential consequences of trying civilians in military courts. This can help foster a culture of legal literacy and empower individuals to demand justice and accountability.
- Engage with international human rights organizations: Cooperate with international human rights organizations and allow independent monitoring of the judicial process. This can help ensure compliance with international standards and demonstrate a commitment to upholding human rights and the rule of law.
In conclusion, the use of military courts to try civilians raises significant concerns about fairness, justice, and respect for human rights. It undermines the principles of democracy, the rule of law, and the supremacy of the constitution. To maintain a just and democratic society, it is crucial to ensure that civilians are tried in civilian courts that uphold due process, transparency, and accountability. By doing so, societies can foster trust, protect human rights, and preserve the integrity of their democratic institutions.
Asad Faizi is a Seattle based entrepreneur, technologist and community leader. He has launched several successful software startups. Asad’s expertise is in cloud and cloud native technologies. He has worked extensively for educational causes in Pakistan. His Twitter handle is @asadfaizi