Opinion | Authenticity of Pak military courts for civilians

How Pakistan’s Military-Influenced Judiciary Undermines Fair Trials, While India’s Independent Courts Uphold Democracy

The judiciary plays an important role in the potential of democracy to ensure the rule of law, safeguard citizen’s rights, and maintain balance in government. But unfortunately Pakistan is such a country where independence of its judiciary is overshadowed by overwhelming control of the military over every other matter concerning the civilians, control absolutely above constitution beyond territorial defence and security it was constituted to provide. Amongst all such overextends, military courts being used to try civilians is perhaps one of the most distressing ones. The process has set up questions in everyone’s mind regarding fair trials, openness, and democracy. Let us delve into Pakistan’s problems with its military courts, flaws associated with it, and how the case compares to India where its judiciary acts autonomously to safeguard democracy.
The original purposes of the military courts in Pakistan were to address offenses by military personnel, like disobedience, undercover work, or desertion. Through the years, though, their jurisdiction had expanded to cover civilians, particularly when there was a political or security crisis. Military courts prosecuted people for allegedly damaging military buildings following the riots in May 2023. Using statutes like the Official Secrets Act and the Pakistan Army Act, the government defended this by claiming that “it was necessary to safeguard national security”. However, this exposed more problems in the system, making Pakistan’s weak democracy even worse.
One of the major problems that exist with military courts in Pakistan is that the trials are not very transparent. Behind closed doors, all the trials happen, and access is denied even to the media, human rights organizations, or even the accused’s family. This raises great questions about justice being served behind such closed doors. In an effective judicial process, transparency becomes the key aspect for accountability as well as winning public trust. Such secretive settings of trials of civilians create suspicion and undermine the credibility of the judicial process. A person has a right to a fair and open trial, which is a principle accepted globally, but it is frequently denied in Pakistan.
Due process ( i.e. lack of fair legal procedures) is another glaring flaw in the military courts. The civilians would not be allowed to have their choice of lawyers. The trials take a relatively short time without the solemn need for complexity and evidence. This is worse, as the decision of the military courts is usually final and cannot be appealed to civilian courts. In a proper democracy, the right to appeal is important to fix mistakes or unfair decisions. Pakistan’s military courts don’t allow this, which goes against basic legal rules and leaves the accused with no way to seek justice.
The judges in military courts are part of the military itself. Since they work for the same organization that is accusing the person, they might not be completely neutral or fair while making decisions. Their connection to the military makes their independence questionable. This creates a clear conflict because their main loyalty is to the military, not to justice or fairness. It is almost impossible to expect fair judgments when civilians are tried under such circumstances. This fundamentally compromises the legitimacy of the entire judicial process.
Pakistan also violates international human rights standards in using military courts for civilians. Pakistan, having signed the International Covenant on Civil and Political Rights (ICCPR), has a commitment to ensuring fair trial rights and to the protection of the rights of its citizens. In this regard, conducting civilian trials before military courts violates this commitment. This practice has been condemned by international bodies like Amnesty International and Human Rights Watch as well as by nations such as the United States and the member countries of the European Union. Censure on this account reflects Pakistan’s failure to fulfil its democratic obligations and violation of international conventions.
Military influence in Pakistan is not only a judiciary matter but extends its impact on the country’s politics, economy, and even education system, making all the civilian institutions weak and helpless. This disrupts the balance of power and harms the country’s democracy. Normally, the judiciary should keep the military in check, but in Pakistan, it doesn’t.
On the other hand, India has a very different approach to how the military and the courts work together. The military courts in India are referred to as court-martials and are strictly confined to the military personnel and never used to try civilians under any circumstances. This ensures that the military is kept strictly on its national defence role and does not get involved in civilian judicial matters. Civilians accused of crimes in India are tried in open courts where the principles of openness and fairness are most utilized.
The judiciary of India is independent of the military or the executive; it does not take interference from them. In civilian courts, judges are selected through a clear process that maintains their impartiality and independence, which enables them to deliver justice without any outside influence. Indians have the right to a fair trial, legal counsel, and to appeal decisions before higher courts. These are safeguards that are actively enforced, so that justice is not only delivered but also seen to be delivered.
Judicial practices in India also conform to international human rights standards. Unlike Pakistan, India respects its obligations upon ratifying the ICCPR (The International Covenant on Civil and Political Rights). It commits to fair trials and the protection of every individual’s rights; India remains committed to democracy and respect for individual liberties.
Such glaring contrasts in how Pakistan and India handle military and civilian judicial affairs reflect the wider issues in governance. In Pakistan, the strong military power provides a parallel government that undermines the democratic system of governance. On the other hand, in India, the military is kept subordinate to the civilians, which enhances democratic values.
The civilian trial of military tribunals in Pakistan raises serious questions regarding justice, fairness, and democracy. These courts are generally not transparent; their system does not adapt to due process and judicial independence. This practice therefore goes against the charter of international human rights laws and allows the military to overstep its constitutional role. On the other hand, India reflects a democratic system functioning as it should. Its judiciary is fair, transparent, and independent; it ensures and upholds rule of law. To strengthen Pakistan’s democracy further and regain public trust in the country’s institutions, the citizens of Pakistan would have to halt the practice of trial of civilians before military courts; instead, there should be complete and fair civilian court trials to all citizens in the country. For that to materialize, however, Pakistan had to address some of these serious issues.

vadaiekashmir@gmail.com