Islamabad:
The judges of the Supreme Court Jamal Khan Mandokhail and Naeem Akhtar Afghan published a dissident opinion on Friday in the case concerning the trial of civilians in the military courts, declaring that these courts are unconstitutional.
The minority decision of 35 pages stipulates firmly that the courts of the courts is exclusively limited to military personnel and cannot be extended to ordinary civilians.
The judges judged that the application of military competence to civilians was unconstitutional.
The dissident note critically examines the broader hypothesis that civil courts are unable to treat high -level cases of terrorism, rather suggesting that this story was misleading.
He observes that it was generally portrayed that civil courts have failed to manage serious offenses such as terrorism, and that military courts are the only remedy, but reality is quite the opposite.
Recalling the previous previous one, the judges noted that the military courts were temporarily authorized in 2015 to hear certain cases related to terrorism. However, experience has failed to eliminate terrorism, in part because military officers do not have legal experience required to judge complex criminal issues.
The decision observes that cases on a global scale, terrorism are not judged before the military courts. He argues that criticism of the criminal justice system is moved and notes that acquittals before civil courts often result from poor investigation, low witnesses or politically charged affairs, and not judicial incompetence.
He stressed that, according to article 25 of the Constitution, all citizens are equal before the law and have the right to equal protection of the law. The principle of equal protection guarantees that all citizens are treated in the same way under the law, whatever their history, their race, their religion, their political affiliation, their action or other classifications.
“This is a fundamental right guaranteed by the Constitution, ensuring that the law also applies and that no one is above the law. Treating citizens differently, without a reasonable classification is equivalent to discrimination.”
“This happens when two people or groups of people also placed are treated differently. To discriminate individuals in legal proceedings because of their acts or the nature of an offense, is a violation of the principle of equality before the law and is entitled to equal protection of the law,” he noted.
“The security of life and freedom of a person is a fundamental right, to be free from arbitrary deprivation of life and freedom. Article 9 of the Constitution guarantees and guarantees that citizens have the right to protection against damage, physical danger, potential risks and threats to their life, their life, their unjust or illegal life or the imprisonment of all action.
He also observed that an independent judicial power can act as control of the government’s power to ensure the security of life and freedom of citizens. The criminal justice system implies a set of laws and principles which provide procedure, aim to protect the IFE and the freedom of citizens and to ensure order in society.
Article 10 of the Constitution guarantees guarantees of the arrest and detention of a person, with the right to consult and to be defended by a legal of his own choice. It is also assured that no one will be held in detention beyond a period of twenty-four hours without the authority of a magistrate.
“The martial courts established under the MJS, made up of managers, are not independent and impartial. They do not provide the constitutional protection of the security of life and freedom of a person, and save themselves from his arrest and his detention. Although he owned in the military guard, the provisions of the prison manual are not applicable to persons accused of military crime.
He also noted that the accused’s right of consulting and being defended by a practitioner of his own choice, guaranteed by the Constitution, was subject to the approval of the chief of army personnel or the concession officer, as provided for by rule 82 of Pakistan Army Act, rules 1954.
“This is a fundamental right of a person under the sub-article (1) of article 10 of the Constitution, which cannot be made conditional. The custody of the accused of offense under the clause (D) and the procedure adopted by the martial courts are incompatible with, removed and house their fundamental rights, which violating articles 9 and 10 of the Constitution.”
The note declared that the right to a fair trial and a regular procedure is universally accepted as a fundamental right, consequently, the legislator, carrying out its importance and its necessity, inserted article 10a in chapter 1 of Part II of the Constitution, by the Constitution (eighteenth amendment) law of 2010.
“The fair trial and the regular procedure help limit the abuses of governments and state authorities and ensure the integrity and equity of the legal system. The regular procedure has a requirement that the legal question concerning civil rights and obligations and a criminal accusation against a citizen be resolved in accordance with the law, the established rules and principles, on the basis of the evidence presented.”
The critical dissent also criticizes federal and provincial governments, declaring that instead of investing and improving the civil justice system, they have opted for the court martial civilians, a decision that goes beyond constitutional borders.
The judges observed that the sanctions transmitted to civilians involved in May 9, 2023, the events of the military courts exceeded their jurisdiction and therefore no and non -Avenus.
The note concludes by reiterating that the service of justice falls under the constitutional domain of the civil judicial power.
The rule of law requires that each citizen have the right to a fair trial, indicates the decision.
