Abdul Basit Alvi
In a recent development, the Supreme Court, through a reserved judgment, invalidated the practice of trying civilians in military courts. This decision was made by a five-member larger bench, presided over by Supreme Court Justice Ijaz-ul-Ahsan. The bench also included Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik. The public’s response to this decision has been severe, as there are concerns that it may not align with the principles of justice and the practical realities on the ground. In any nation, the judicial system serves as the linchpin of justice, upholding citizens’ rights and maintaining the rule of law. However, Pakistan’s judicial system, while essential, grapples with substantial challenges that hinder its capacity to deliver prompt and equitable justice. One of the most acute issues within Pakistan’s judicial system is the persistent and protracted delays in court proceedings. Cases can remain stuck within the legal system for extended periods, sometimes spanning years or even decades, before a verdict is reached. These enduring delays not only frustrate litigants but also deprive individuals of timely justice, gradually eroding their confidence in the legal system. The caseload backlog in Pakistani courts has reached alarming proportions. Courts are overwhelmed by the sheer volume of pending cases, causing judges and court staff to grapple with a herculean task of effectively managing their caseload. This backlog not only exacerbates delays but also raises the risk of justice being sacrificed in favor of expedience. It is a source of great concern that the country’s superior and lower judiciaries are grappling with a substantial backlog of 2.144 million cases. In 2021, a staggering 4.102 million cases were resolved, and an additional 4.06 million new cases were filed. At the outset of 2021, the cumulative backlog before all the courts stood at 2.16 million cases. In the preceding year, the Supreme Court, Federal Shariat Court, and five high courts in the nation collectively disposed of 229,822 cases while 241,250 new cases were introduced in 2020. By the end of the year, pending cases before the superior courts amounted to 389,549, only slightly down from the 378,216 cases at the beginning of 2021. Similarly, the district judiciary commenced the year with 1,783,826 pending cases in 2021. Throughout the year, they adjudicated 3,872,686 cases, with an additional 3,822,881 fresh cases being lodged. By the close of the year, the total pendency at the lower judiciary stood at 1,754,947 cases. According to statistics compiled by the Law and Justice Commission of Pakistan, the Supreme Court had 46,695 pending cases at the start of 2021, which increased to 51,766 by year-end. The apex court decided 12,838 cases, with 18,075 new cases being filed in 2020. In summary, the public’s apprehensions regarding the Supreme Court’s recent decision on civilian trials in military courts are rooted in a broader context of systemic inefficiencies and challenges within Pakistan’s judicial system. Delays and mounting caseloads represent substantial obstacles to the prompt and fair delivery of justice, necessitating comprehensive reforms to ensure the legal system effectively serves the needs of the citizens and maintains their faith in the rule of law. The Federal Shariat Court was established back in 1980 during a military regime, primarily tasked with the responsibility of assessing and determining whether any existing law or legal provision aligns with the tenets of Islam. Additionally, it was entrusted with the responsibility of hearing appeals in cases involving rape and unnatural offenses. However, the court’s caseload has been significantly reduced over the years. This decline in cases before the Federal Shariat Court can be attributed to the enactment of the Protection of Women (Criminal Laws Amendment) Act in 2006. This Act considerably limited the court’s jurisdiction by transferring appeals and applications for revision related to the trial of offenses away from the Offence of Zina (Enforcement of Hudood) Ordinance of 1979. These appeals are now filed before the high courts. At the start of 2021, the Federal Shariat Court had 178 pending cases. During the year 2020, it resolved 139 cases and received 118 new cases. By comparison, the Lahore High Court adjudicated an impressive 149,362 cases in 2020, with an additional 148,436 new cases being instituted during the same period. As a result, the total pending cases at the Lahore High Court as of December 31st stood at 187,255. The Sindh High Court disposed of over 31,000 cases in 2020, but nearly 34,000 new cases were also filed during the same period. Consequently, the total pending cases at the Sindh High Court exceeded 84,000. Similarly, the Peshawar High Court received 23,941 cases and rendered decisions in 20,528 cases throughout 2021, with the pendency standing at 44,703 cases. The Balochistan High Court, which started the year 2021 with 4,194 pending cases, concluded 7,287 cases and saw the introduction of 7,182 new cases in the previous year. This left the court with 4,108 pending cases. In 2021, the Islamabad High Court resolved 7,918 cases and received 9,433 new cases, leading to a total of 17,456 pending cases by the end of 2020. The lower judiciary in Punjab had a busy year, deciding 2,904,745 cases, while also encountering 2,826,774 new cases during 2020. The resulting backlog totaled to 1,313,669 cases. In Sindh, the district judiciary disposed of 344,701 cases, with 346,109 new cases filed in 2021, leaving 117,790 cases pending by December 31st. The subordinate courts in Khyber Pakhtunkhwa managed to adjudicate 475,927 cases in 2020, while 500,417 new cases were initiated in the same period. The total pending cases reached 256,873. Similarly, the district judiciary in Balochistan resolved 59,652 cases, received 59,289 new cases, and ended up with 15,675 cases pending trial. The lower courts in Islamabad disposed of 87,661 cases, but they also saw the introduction of 90,292 new cases in 2021, resulting in a total pendency of 50,940 cases. In light of these challenges and the overwhelming caseloads, the National Judicial Policy was introduced in 2009 with the aim of reducing judicial backlogs, ensuring judicial independence, and combatting corruption within the system. Despite these efforts, the accessibility of the judicial system in Pakistan remains a significant concern, particularly for those in rural and underprivileged areas. The associated costs of legal representation, travel, and accommodations often prove to be prohibitive, limiting access to justice for many citizens. Corruption within the judicial system in Pakistan remains a persistent issue. Reports of corruption, bribery, and undue influence on judges and court officials have surfaced. These practices erode the credibility and impartiality of the system, hindering the delivery of fair justice. The judicial system’s inefficiencies in case management, including the absence of modern case tracking systems, pose challenges for effective caseload management. The lack of technology-driven solutions can result in errors, mishandling of documents, and further delays in the legal process. Pakistan’s judicial system often operates with limited resources, which include insufficient infrastructure, staffing, and facilities. This inadequacy hampers the system’s optimal functioning, contributing to its inefficiency and poor performance. Legal procedures in Pakistan are frequently overly complex and bureaucratic, making it daunting for ordinary citizens to navigate the system. Streamlining and simplifying these processes would not only enhance access to justice but also alleviate the burden on the courts. Access to legal aid in Pakistan is restricted, leaving many individuals without adequate legal representation. This disproportionately affects vulnerable and marginalized populations, leaving them unable to effectively assert their rights in court. The subpar state of Pakistan’s judicial system is a grave concern. Addressing these challenges is imperative to ensure that justice is not only served but is also perceived to be served. Urgent reforms are essential to enhance efficiency, reduce delays, and combat corruption within the system. Moreover, efforts to improve accessibility and provide better legal aid to those in need are critical steps toward a just and effective judicial system. Collaboration among the government, judiciary, legal professionals, and civil society is vital to enact these necessary changes and rebuild public trust in Pakistan’s legal system. Only through comprehensive reform can the judicial system fulfill its pivotal role in upholding the rule of law and safeguarding the rights of all citizens. Regrettably, the Pakistani judicial system has thus far fallen short in delivering prompt and equitable justice to all its citizens. A well-functioning legal system is the cornerstone of any democratic society, preserving the rule of law and safeguarding the rights and freedoms of its populace. Many countries have acknowledged the importance of establishing specialized courts to address specific types of cases, as they play a crucial role in the legal landscape by catering to unique needs and challenges that standard courts may not adequately address. The significance of special courts primarily lies in their specialization. These courts are designed to handle specific categories of cases, such as family law, tax law, military law, or environmental law. This focused approach allows judges, prosecutors, and defense attorneys in special courts to develop a profound understanding of the intricacies and subtleties within their respective domains. Consequently, this expertise leads to more informed and equitable decisions, ensuring that justice is served in these specific areas. Special courts are renowned for their efficiency. By exclusively dealing with particular types of cases, these courts can expedite case resolution effectively. This efficiency proves particularly advantageous in cases necessitating immediate attention, such as family law disputes related to child custody or domestic violence. In contrast, standard courts, which handle a wide range of cases, frequently grapple with delays and backlogs, potentially causing undue hardship for involved individuals. Specialized courts often implement distinct procedures and protocols tailored to the specific requirements of their respective legal domains. For instance, family courts may provide mediation services to amicably resolve disputes, while environmental courts may focus on conducting environmental impact assessments. This custom-tailored approach ensures that the legal process adapts to the unique circumstances and complexities of each case, ultimately promoting fairness and justice. Specialized courts can significantly enhance access to justice, particularly for marginalized and vulnerable populations. For example, drug courts offer treatment and rehabilitation programs to individuals grappling with addiction instead of resorting to punitive measures. This approach aids in breaking the cycle of addiction and reducing recidivism. Similarly, specialized juvenile courts prioritize rehabilitation and education over incarceration, recognizing that a one-size-fits-all approach to justice often proves ineffective and detrimental for both individuals and society. Special courts enjoy the flexibility to explore innovative legal solutions and experiment with novel approaches to address specific legal challenges. This experimentation can lead to the establishment of new legal precedents and alternative dispute resolution methods, which may eventually be integrated into the broader legal system. The adaptability of special courts serves as a testing ground for legal reforms that can positively impact the entire justice system. By handling specialized cases, special courts lighten the caseload burden on standard courts, enabling them to focus on more intricate and general legal matters. This reduction in caseloads can significantly mitigate delays and backlogs within the legal system, ensuring that justice is dispensed in a timelier manner. Special courts stand as an indispensable component of any country’s justice system. Their specialization, efficiency, tailored procedures, and emphasis on facilitating access to justice collectively contribute to the establishment of a just and effective legal framework. By addressing the unique requirements of specific areas of law, special courts not only ensure the dispensation of justice but also aid in preserving the overall integrity of the legal system. As legal landscapes evolve, the role of special courts remains crucial in adapting to the evolving societal needs and upholding the rule of law. Pakistan encountered acts of terrorism shortly after its decision to support the US-led war against terrorism in September 2001. Beginning in 2006, various targets, including police stations, army posts, garrison centers, schools, colleges, parks, hotels, courts, and even mosques, were repeatedly attacked by terrorists. Numerous individuals lost their lives in these attacks, which included major incidents such as the attack on the Lahore High Court, ISI and FIA offices in Lahore, Islamabad, Hyderabad, and other regions of the country. Acts of terrorism targeted critical institutions, such as the FIA headquarters in Lahore, district courts in Islamabad, as well as churches and mosques nationwide, with alarming ease. A period of intense fear and uncertainty gripped the nation, leading schools to hire sharpshooters and snipers for the protection of students. Instructors were asked to receive weapons training. Provincial governments admitted their incapacity to provide policing resources for safeguarding all schools. Even when terrorists were apprehended and arrested by intelligence and law enforcement agencies, they were often released under the pretext of “lack of evidence.” In reality, this was often attributed to factors behind the scenes, including corruption within law enforcement agencies, bribery, deficient forensic procedures, inept and uninterested prosecution, and threats from terrorist groups directed at prosecutors and judges. An illustrative example of the inadequacies of Pakistan’s criminal justice system is the case of the Marriott Hotel bombing in 2008, where over 50 people, including diplomats and foreigners, lost their lives, and around 300 were injured in a horrific act of terrorism in the heart of Islamabad. Despite overwhelming evidence linking the terrorists to the Marriott bombing, they were ultimately released after several months of an ineffective trial. Military courts were established in Pakistan in response to a devastating terrorist attack on the Army Public School (APS) in Peshawar on December 16, 2014. This audacious assault resulted in a tragic loss of life, with at least 144 people killed, including 133 children. In early January 2015, following an All Parties Conference (APC), the proposed 21st Constitutional Amendment was approved, officially came into effect on January 6, 2015. This amendment permitted modifications to the Pakistan Army Act, expanding its jurisdiction to expedite the trial of cases under specific acts and providing constitutional legitimacy, complete with a two-year sunset clause from the date of enactment. Subsequently, on January 9, 2015, Pakistan lifted the moratorium on the death penalty, making way for trials to be conducted in military courts. According to official statistics up until December 2018, over the course of slightly more than three years, approximately a dozen military courts handled 717 cases, successfully concluding 546 of them. Among the verdicts, 310 individuals were sentenced to death, while 234 received various terms of rigorous imprisonment, ranging from life imprisonment to 5-year imprisonment. Additionally, two accused were acquitted. The information presented above underscores the challenges within our civilian judicial system and the relatively more efficient performance of military courts. It’s crucial to bear in mind that Pakistan continues to grapple with the war against terrorism and anti-state elements. Our civil judiciary is already overwhelmed by a significant caseload, making military courts an expedient option for dealing promptly with cases involving terrorists and anti-state elements. Importantly, accused individuals have the opportunity to appeal their cases in higher civilian courts, effectively eliminating the risk of miscarriages of justice. The nation has witnessed the destructive consequences of riots and anti-state elements, which have targeted various military and civilian installations, including the GHQ, Lahore Corps Commander House, and numerous army and civilian properties. The rest of the world has observed the terrorist attacks on military and civilian installations in Pakistan following the arrest of an individual on charges of corruption. In response, it was decided that these terrorists and anti-state elements would be tried under the Military Act and before military courts. What the PTI done on May 9 is something that not even our enemies could do in 75 years. According to the Pakistan Army’s Public Relations Department (ISPR), General Asim Munir, the Army Chief, visited Lahore after the attack and was briefed on the events of the May 9 Black Day. ISPR reported that the Army Chief paid his respects to the martyrs who had sacrificed their lives for the nation by laying flowers at the martyrs’ memorial. General Asim Munir also visited Jinnah House and a military installation. During this visit, General Asim Munir emphasized that legal proceedings have been initiated under the Army Act and the Official Secrets Act against those responsible for the tragic events of May 9. He stressed that the strength of the Pakistan Army lies in its people, and any attempt to create a division between the army and the people is an act against the state, which will not be tolerated under any circumstances. General Asim Munir further noted that enemy forces and their supporters are attempting to spread chaos through false news and propaganda. However, with the support of the nation, such nefarious ambitions of the enemy will be thwarted. The decision to address these elements through Military Courts is a commendable initiative and has been warmly welcomed by the nation. It is essential to ensure that the culprits face severe consequences so that no one ever dares to contemplate such malicious actions in the future. It is worth noting that after the September 11 attacks, the United States established military courts for alleged perpetrators and facilitators (with no media access and non-appealable decisions) in Guantanamo Bay. The U.S. also resorted to controversial methods during its investigations, including waterboarding. This was accompanied by military actions in Afghanistan. Consequently, the world does not have a moral high ground to criticize Pakistan’s actions against those responsible for the events of May 9. In September 2001, President Bush signed a joint resolution authorizing the use of force against those responsible for the September 11 attacks. This resolution served as the legal basis for various measures taken by the Bush administration in the name of combating terrorism, including the invasion of Afghanistan, domestic surveillance without court orders, and the establishment of Guantanamo Bay detention camp. The war effort against the Taliban in Afghanistan also involved the support of several other countries. Just as the world was pushed into the Afghan war following the events of September 11 and all resources were used to target the terrorist so Pakistan also has the right to address terrorists and anti-state elements through Military Courts. It’s important to highlight that decisions made by our military courts allow culprits the right to appeal in higher courts, thus ensuring that justice prevails without the risk of injustice. Readers, the recent decision by the Supreme Court has raised concerns that it may be giving undue freedom to terrorists and anti-state elements. People on the streets are expressing apprehensions about the alleged connections between Imran Khan, the TTP, and other anti-state elements within our judiciary, which they fear might hinder the application of the rule of law. These concerns are unsettling for a fair and impartial judicial system and are deeply distressing to the families of our martyrs. We can hope that the relevant authorities will consider a review appeal. This matter should prompt reflection within our judiciary to ensure that it aligns with the principles of justice and the realities on the ground.