Can civilians be tried in military tribunals?

Amalendu Upadhyaya
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By Justice Markandey Katju

An important issue has arisen in Pakistan, which is whether civilians can be tried in military tribunals. This issue has arisen following the events in Lahore on 9th May 2023, and many civilians are being tried in military tribunals in connection with them.

A 5 judge bench of the Pakistan Supreme Court, headed by Justice Ijaz ul Ahsan, had held that such trials are illegal, but a 6 Judge bench headed by Justice Tariq Masood (Justice Massarat Hilali dissenting) has suspended the 5 judge bench verdict.

Justice Ijaz ul Ahsan has written a letter questioning the constitution of the 6 judge bench
We need not go into this, but it is crucial to consider whether civilians can be validly tried by military courts.

I submit they cannot, and here are my reasons :

Military tribunals are created in all countries with the purpose of ensuring discipline in the army, since no army can operate properly without discipline in its ranks. For instance, if a soldier or officer refuses to obey orders of his superiors, or is absent without leave or overstays his leave, or misbehaves with a superior or another soldier or a lady, or commits violence on civilians, etc he must be punished, and it is for meting out such punishment that military tribunals are created.

The judge ( or judges ) who preside over such tribunals are all military officers, and a military officer has to obey the orders of his superiors.

On the other hand, a civilian judge does not have to obey orders of his superiors in judicial proceedings, but has to decide cases according to the law and his own conscience. For instance, the Supreme Court cannot tell a High Court judge what decision he has to give in a particular case, and similarly the High Court cannot tell a subordinate judiciary judge what decision he has to give. Of course a judge has to follow the law laid down in decisions of superior courts, in accordance with the doctrine of precedents, but that is not the same as being ordered to decide a case in a particular manner.

In a trial by a military tribunal, on the other hand, since the judge is an army officer, many people may think his verdict was really dictated by a superior officer, even if it was really on the basis of the judge's own opinion,

Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256.

The facts of this case are interesting. Mr McCarthy was driving a motorcycle and collided with another motorcycle that had a side-car which was driven by Mr Whitworth whose wife was in the side-car. Both husband and wife sustained injuries in the collision and the police instituted criminal action against McCarthy. Whitworth also engaged a firm of solicitors, M/s. Langham, Son and Douglas to proceed against McCarthy for damages.

The criminal proceedings were taken up for hearing before a bench of judges in Sussex. The clerk to the justices, Mr. Langham, was also a partner of the law firm that was engaged to sue McCarthy for damages. As Mr. Langham was on a holiday, his younger brother acted as a deputy clerk on the day of the hearing. Incidentally, the younger brother was also a partner in this law firm.

After the hearing was over, the justices retired to their chamber to consider their decision and the deputy clerk also retired with them. After some time, the justices returned to court and declared McCarthy guilty, convicted him and imposed fine of just 10 GBP with costs.

McCarthy appealed against this decision and one of the grounds was that it was improper for the deputy clerk to have retired with the justices before they delivered their verdict. He contended that he was a partner of the very law firm which was engaged to sue him for damages on the civil side and therefore, it was improper for such a partner to also retire with the justices.

The King’s Bench, presided over by Lord Hewart, issued notice and the justices of the lower court of Sussex filed an affidavit stating that although the brother, who had acted as a deputy clerk, had retired with them, he had scrupulously abstained from any discussion on this case and they had arrived at their decision unbiased by the fact that the deputy clerk was a member of the law firm which was engaged to sue Mr McCarthy for damages.

Before the King’s Bench, the counsel for the Sussex Justices also argued that the deputy clerk merely retired with the judges to their chambers but he did not take any part in their deliberations. Therefore, his presence would not invalidate the conviction and, at best, was an irregularity.

What followed was a judgement that contained a historic sentence that has been often repeated for almost a hundred years. Lord Hewart delivered his judgement on November 9, 1923. After setting out the facts, he held that that he fully accepted the statements contained in the affidavit of the Sussex justices. He also accepted that the presence of the deputy clerk did not influence their decisions and that he did not participate in their deliberations. He also assumed and accepted that the deputy clerk had scrupulously abstained from referring to the civil case which the law firm had been engaged to pursue the claim for damages against McCarthy.

Despite accepting these facts and also the fact that the conviction was not influenced by the presence of the deputy clerk, Lord Hewart quashed the conviction by observing :

''It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done''.

He went on to observe that the question was not whether the presence of the deputy clerk had influenced the decision or whether his firm, being involved in the civil case, had any role to play in the conviction. Lord Hewart went on to observe that what was important was not what was actually done, but what might appear to have been done and held :

“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”

It is remarkable that this landmark ruling arose out of a minor collision case where the fine was just 10 (ten pounds). Yet, the King’s Bench quashed the conviction merely because the deputy clerk was also present at the deliberations in the chamber of the Sussex justices.

This landmark ruling has been followed by all courts worldwide. Indeed, it was this decision that was decisive in setting aside the initial order of the British House of Lords against the Chilean dictator Gen Pinochet because Lord Hoffman was on the Bench, and his wife had worked with Amnesty International which had pursued the case against Pinochet.

The principle that justice must not only be done but also appear to be done is the basis of the requirement that court proceedings must ordinarily be open and in the public gaze

Hence, while military tribunals are necessary for trying military personnel, in order to maintain discipline in the military, they cannot do justice when trying civilians, because they cannot appear to do so.

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

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