ay 9 and 10, 2023, shall be remembered as the bleakest days in the history of Pakistan, for all the undesired activities that took place. Pictures and video footage of mobs taking to the streets in various part of the country, destroying public properties and state installations, and halting civic life wouldn’t sit right with any sane mind.

Military trials were proposed for those involved in the violence, particularly attacks on military properties. However, on October 23 the Supreme Court of Pakistan announced a short order ruling out military court trails of civilians.

The five-member bench, exercising the original jurisdiction of the court under Article 184(3) of the constitution decided the constitutional petitions regarding the fate of 103-odd accused persons in relation to the events arising from and out of the activities of May 9 and 10. The bench declared the provision of The Pakistan Army Act, 1952, which extends the applicability of the Act to the “persons not otherwise subjected to the Act” ultra vires of the constitution and of no legal effect.

The detailed judgment, which has not yet been approved for reporting, shall shed further light on the argument employed by the bench to reach its final verdict. For now, the bench has done away with Sections 2(1)(d) — in both its Clauses (i) and (ii) — and 59(4) of the Pakistan Army Act, 1952. Additionally, the bench maintained that the “trial of civilians and accused persons… 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 May 9-10, 2023, shall be tried by criminal courts of competent jurisdiction established under the ordinary and/ or a special law of the land in relation to such offences of which they may stand accused.”

Moreover, any action taken under the Act “in respect of the aforesaid persons or any other persons similarly placed (including but not limited to the trial by court martial) are and would be of no legal effect.”

In pure legal context, this verdict extends constitutional and legal protection to the accused. Great caution should always be exercised when it is state versus a civilian/ citizen because this is read and conceived as the all-powerful versus the less able. The recent development in no way exonerates the actual offenders. It only regulates and protects the rights guaranteed to them. They’ll be made to face the trial for the offences against which they may be accused of, only, not in military courts but in the criminal courts constituted in consonance with the constitution.

The constitution enshrines the principle of trichotomy of power which envisages that the Executive, Legislature and Judiciary are to work within their separate spheres. One organ of the state intruding upon or shadowing the sphere of another can undermine the basic structure of the constitution.

Caution and fairness should be exercised when it is state versus a civilian/ citizen because this is something which is read and conceived as the all-powerful versus the less able. 

eeping the argument solely to the adjudication of matters as provided for in the law, it is the Judiciary which has to apply and interpret laws. For this, there are lawyers and judges. They are trained and sensitised for years to assist and adjudicate upon the matters brought before them. Extensive research on the available literature on an issue is carried out, and judgments are announced deciding the fate of an issue while adhering to the steps in the procedure of the trial as provided for by the law.

The counsel for both the parties minutely and closely monitor and protect the rights of parties involved at every stage of the trial and during the pre-trial procedure. There are intricacies involved, different interpretive techniques employed and precedents referred to before coming to a conclusion. This may not be observed during a court martial, for it works in an entirely different setup and mindset.

In the Abdul Rashid vs Federation of Pakistan through Secretary Ministry of Interior, in 2019, it was observed by the Peshawar High Court that “all military courts that sentenced the accused persons were functioning on one and the same pattern, and not even a single accused had deviated or answered differently to the questions put to him.” The judgement elaborates on how military trial and convictions stand on almost similar confessional statements by the accused where there was nothing on record to suggest if all the formalities to record the confessional statements of the accused had been fulfilled.

There was complete silence as to where the accused had been kept during the period between his arrest and internment. None of the accused was specifically named in the FIR, and no eyewitness was produced. The accused did not call for any witness in their defence, nor did they object to the proceedings conducted by the presiding officer. “It was not known as to how the counsel represented the accused, in which language, and at which place he used to advise them…” In short, in the words of the judgment, the proceedings before the military courts were “a complete prosecution show…”

The extension of court martials to the civilians was an oddity. No matter the circumstances, the working of the state could go only as smooth as provided for by the constitution and without compromising the basic structure it is standing upon. Any step to redirect the country back on to the path and structure it is designed to go and work upon should be welcomed by all.

The writer is an advocate of Lahore High Court