Military Court Trials of Civilians in Pakistan: Constitutional Rights, International Obligations and Sustainable Justice

Abstract

The call to try civilians in military courts in 2022 reignited the debate surrounding the legitimacy of quasi-judicial tribunals, and their exercise of jurisdiction over civilians. Regarding trials of civilians in military tribunals, there have been many judgments and academic discourses. There are diverging views either endorsing or condemning this sui generis practice. The higher courts have not decided the matter conclusively. Pakistan does not subscribe to the idea of the direct effect of international treaties. Yet, like any other dualist state, many rights guaranteed in such treaties have been incorporated into its constitution. There is a stark contrast, however, between the case law interpretation of these rights and their international corresponding equivalents in the transnational regimes. The international mechanisms for the protection of rights still pose many questions on the legitimacy of civilians being tried in military courts. More confusion arises with the proliferation of contemporary idea of sustainable justice, which seems divergent and somewhat in contravention of such Pakistani state practices. This qualitative research paper juxtaposes the traditional constitutional interpretations with contestations in relevant international instruments and explores the possibility of harmonization. It lays out a futuristic proposal to predict a direction for proposed future amendments. The same would be done with the increasingly important idea of sustainable justice which directly relates to the United Nations (UN) Sustainable Development Goal (SDG) 16. Moreover, as indispensable themes, the paper explores the following: whether the trial of civilians in military courts is a constitutionally sound practice. Does trying civilians in military courts infringe upon Pakistan’s international obligations? And is the expediency behind these specialized courts still prevalent in the country?