SC axe falls on military court trial of civilians

ISLAMABAD/LAHORE: In a 4-1 verdict on Monday, the Supreme Court declared the trial of civilians in the military courts as unconstitutional and held that 103 persons and others, who may related to the events of May 9 and 10, could be tried by the criminal courts established under the ordinary or special law of the land.

A five-member larger bench of the apex court headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik announced the decisions on petitions challenging the trial of civilians in military courts.

The petitioners, including former Chief Justice of Pakistan Justice Jawad S Khwaja, former Prime Minister and PTI Chairman Imran Khan, Barrister Aitizaz Ahsen, Supreme Court Bar Association (SCBA), Karamat Ali, Zaman Khan Vardag, Junaid Razzak, had petitioned the apex court against the trial of May 9 and 10 violence suspects in the military courts.

“For detailed reasons to be recorded later, and subject to such amplification and/or explanation therein as is considered appropriate, these petitions are decided in the following terms: Justice Ijazul Ahsan announced in short order of the court. It is hereby declared by Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Mrs Justice Ayesha A. Malik that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) & (ii) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect”, the court held.

The court held, Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the learned Attorney General for Pakistan by way of CMA No.5327 of 2023 in Constitution Petition No.24 of 2023 and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and /or special law of the land in relation to such offences of which they may stand accused.”

“Justice Yahya Afridi reserves judgment as to para (i) above but joins the other members of the Bench as regards paras (ii) and (iii)”, the short order reads.

The court noted in its order that CMAs were moved on behalf of various individuals for impleadment in the listed petitions however, they are not supported by appropriate affidavits as per the requirement of the Supreme Court Rules, 1980 which are accordingly dismissed. Furthermore, the court noted in its order that other CM Appeals were also moved however, it appears that the office had raised objections regarding the maintainability of petitions filed by the Appellants.

The court further noted in its order that in terms of the Supreme Court Rules, 1980 such appeals are to be assigned to judges of this court in chambers for appropriate orders. “Office has wrongly fixed these CM Appeals directly before the Court”, the short order reads, adding that the same Constitution Petition Nos.24, 25, 26, 27 & 28 and 30 & 35 of 2023 4 are accordingly returned to the office to do the needful in terms of the applicable rules.

The order noted that Shah Khawar advocate had been asked if he wished to make any submissions but he submitted that the respondent (Rana Sana Ullah) he was representing had been impleaded in his personal capacity and is no longer the interior minister, therefore, he does not wish to make any submissions. Similarly, the same stance has been taken by Irfan Qadir, learned ASC, who appeared for the then defence minister who had also been impleaded in his personal capacity.

Earlier, during the course of the hearing, Salman Akram Raja informed the court that trials of civilians already commenced before the top court’s verdict in the case. Justice Ijazul Ahsan however, observed that the method of conducting proceedings of the case would be settled after Attorney General of Pakistan (AGP) Mansoor Usman Awan completed his arguments.

AGP Awan submitted that the accused would be tried under Section 2 (1) (D) of the Official Secrets Act and a trial under the Army Act would fulfil all the requirements of a criminal case. He told the court that the trial of the May 9 accused would be held in line with the procedure of a criminal court. The AG further submitted that the 21st Amendment was passed because the terrorists did not fall in the ambit of the Army Act.

Justice Ijazul Ahsen, however, questioned that amendment was necessary for the trial of terrorists [then] why amendment not required for the civilians? The judge inquired that at the time of the 21st Constitutional Amendment, did the accused attack the army or installations?

The AGP responded that the 21st Amendment included a provision to try accused involved in attacking restricted areas.

Justice Ayesha A Malik drew AGP’s attention towards Articles 8 (1) and 2 which says that there will be no law in violation of fundamental rights. The judge observed that the Army Act was enacted to establish discipline in the forces. “How can the law of discipline in the armed forces be applied to civilians?” Justice Ayesha A Malik questioned.

The AGP responded that discipline of the forces is an internal matter while obstructing armed forces from discharging duties is a separate issue. He contended that any person facing the charges under the Army Act can be tried in military courts.

Justice Ayesha A Malik asked whether the provision of fundamental rights be left to the will of Parliament. She observed that the Constitution ensures the provision of fundamental rights at all costs. The judge further observed that if the court opened this door then even a traffic signal violator would be deprived of his fundamental rights. The AGP cited Mehr Ali Case PLD 1998 SC 155, page 1477, Para 11, contending that the court has held courts established under Article 175 and court-martial are separate. He contended that court-martial cannot be hit by Article 175 and the constitution itself recognises this.

Later, the court observed that a short order will be announced and if it is not announced then it would be reserved. Later, the court again arose at 3pm and announced the short order.

The initial hearings were marred by objections on the bench formation and recusals by the judges. Finally, a six-member bench comprising then CJP Bandial, Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik heard the petitions.

In the last hearing, the case was adjourned for date-in-office (Indefinite period) after Attorney General for Pakistan Mansoor Usman Awan assured the CJP that the military trials would not proceed without informing the apex court.

Soon after the judgment Barrister Aitizaz Ahsen, one of the petitioners termed the apex court judgment as historic which would be written with golden words in judicial history.

Talking to media outside the Supreme Court, Aitizaz said that the decision would strengthen democracy, constitution and whole legal system, adding the apex court has established that supremacy of the constitution and law will prevail.

He said that all the institutions should now be informed that this is the decision of the Supreme Court which has clearly declared “However you may powerful, the law is above you.”

PMLN Deputy Secretary General Ataullah Tarar said that those who destroyed the memorials of martyrs were national criminals and do not deserve any concession.

Atta Tarar in a statement said the PTI chairman launched an attack on the National Security on May 9 as part of a nefarious conspiracy. Today’s decision of the Supreme Court will raise the morale of anti-national conspiratorial elements, he said and added that it means that the foreign agents who create chaos in the country with the support of enemies could not be tried in military courts.

Tarar further said parliament had approved the resolution against the May 9 incidents in June, which allowed to try the May 9 accused in military courts. “In the presence of this resolution of the Parliament, there is no scope for this judgment of the Supreme Court,” he maintained.

He said there was a right to appeal against the decisions of military courts and this protected the legal rights of the accused. He said there were many loopholes in the legal system due to which the accused escaped punishment. “There are examples of special courts created all over the world,” he concluded.