The Right to a Fair Trial and the Military Justice System in Pakistan

Niaz A Shah

doi:10.1163/18781527-00702003

Abstract

This article analyses the military justice system of Pakistan to determine to what extent it is compatible with fair trial standards recognised by human rights law and the constitution of Pakistan. It sets out the fair trial tests and apply them to the military justice system of Pakistan. The analysis reveals that the military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial. It runs as a detached parallel departmental justice system to the national justice system. The author also argues that the majority judgement in the 2015 Military Courts Case did not apply the correct legal tests and wrongly held that the military justice system meets the fair trial standards. It is per in curiam. The author offers recommendations for reforming the military justice system proposing that Pakistan might learn from the successful reformation of the British military justice system.

Highlights

This article analyses the military justice system of Pakistan to determine to what extent it is compatible with fair trial standards recognised by human rights law and the constitution of Pakistan
The analysis reveals that the military justice system blatantly violates fair trial standards: it is part of the Executive and is neither independent nor impartial
The government did not provide any explanation as to why only a particular type of terrorist group was targeted but the statement of objectives to the Bill said: An extraordinary situation and circumstances exist which demand special measures for speedy trial of certain offences relating to terrorism, waging of war or insurrection against Pakistan and prevention of acts threatening the security of Pakistan by any terrorist group using the name of religion or a sect and members of such armed groups, wings and militia

Summary

Introduction

In the aftermath of the Army Public School attack and the newly emerged national political consensus, the public debate on the trial of civilians by military courts was cautious but some muted voices termed the amendment against the right to a fair trial. Most of them were sentenced to death and some were executed promptly.[12]

Objectives

Conclusion