In a significant ruling on Monday, a
five-member Supreme Court (SC) panel declared the military trials of civilians
who were arrested in the aftermath of violent protests in the country on May 9
as null and void. The court made its verdict public shortly after reserving it
for judgment. The bench, led by Justice Ijazul Ahsan, included Justices Munib
Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi, and Ayesha A. Malik.
The court, in a majority ruling of 4-1,
decided that the trials of the May 9 suspects should take place in regular
civilian courts. Justice Afridi was the lone dissenter in the majority ruling.
Furthermore, the court issued a brief order
later in the day, declaring Section 2(1)(d) of the Army Act, which defines who
falls under the Act, as unconstitutional and "of no legal effect."
The court also declared Section 59(4), pertaining to civil offenses in the Act,
as unconstitutional.
Section 2(1)(d) of the Pakistan Army Act
outlines that individuals not otherwise subject to this Act can be tried under
the secrets act for offenses like seducing someone subject to the Act from
their duty or allegiance to the government or offenses related to defense
works, military or air force facilities, ships, or aircraft.
Section 59(4) states that individuals
accused of offenses mentioned in Section 2(1)(d) should be liable to be tried
under the Army Act, even if they weren't subject to it at the time of the
alleged offense.
The court's order, available on Dawn.com,
ruled that the trials of 103 civilians and accused individuals, as identified
by the government in a list submitted to the SC, and any others connected to
the events of May 9, should be conducted in criminal courts.
The order emphasized, "It is further
declared that any action or proceedings under the Army Act in respect of the
aforesaid persons or any other persons so similarly placed (including but not
limited to trial by court martial) are and would be of no legal effect."
It's important to note that today's verdict
can still be appealed by the state before a full court.
This case had been under consideration by a
six-judge bench, which included former Chief Justice of Pakistan, Umar Ata
Bandial, since June. However, after Justice Bandial's retirement, the bench was
reduced to five judges.
On the day before the verdict, at least
nine accused individuals who were facing trials under the Army Act sought an expedited conclusion of their cases by the military courts. In separate
applications, these individuals expressed confidence in the military
authorities' ability to deliver justice to them and others accused.
Following the violence on May 9, which
targeted both civilian and military installations, a total of 102 individuals
were taken into custody for their involvement in attacks on military
establishments, including the General Headquarters in Rawalpindi, the corps
commander's residence in Lahore, PAF Base Mianwali, and an office of the
Inter-Services Intelligence (ISI) in Faisalabad.
In response to the verdict, Aitzaz Ahsan,
one of the petitioners in the case, spoke to the media. He described the ruling
as "very important" and believed that it would strengthen democracy,
the Constitution, and the justice system. Ahsan asserted that the verdict
demonstrated that no one was above the law and expressed his opposition to
military courts.
He pointed out that trials had allegedly
commenced even though the government had stated that they wouldn't until the
apex court was informed, but this didn't happen as intended. He emphasized the
importance of impartial judges and expressed hope that civilian institutions
would gain confidence and improve their performance following the verdict.
Legal experts weighed in on the ruling as
well. Barrister Asad Rahim Khan described the decision as positive for the
Constitution and fundamental rights, adding that it would strengthen civilian
courts. Ahsan Bhoon, former Supreme Court Bar Association president, believed
the decision was correct and aligned with the Constitution. He expressed his
personal opinion that the decision would likely be upheld even in an appeal.
During the hearing, Attorney General for
Pakistan, Mansoor Usman Awan, argued that a constitutional amendment was not necessary for these cases to be tried in military courts. He claimed that
military trials fulfilled the requirements of criminal courts, and those
accused had a direct link to the armed forces.
Justice Ahsan raised questions about the
need for a constitutional amendment and inquired about those tried in military
courts in the past, whether they were civilians, foreigners, or terrorists. The
Attorney General confirmed that the suspects included both nationals and
foreigners and that those tried in 2015 included individuals who facilitated
terrorists.
The case had been pending since August when
the court decided to postpone the hearing indefinitely to avoid the possibility
of the Pakistan Army pointing their guns at civilians. Various parties,
including former CJP Jawwad S. Khawaja, Aitzaz Ahsan, and PTI chief Imran Khan,
filed petitions with the Supreme Court against the trials of civilians in
military courts, citing concerns about civilian supremacy.
Following the Oct 11 upholding of the
Supreme Court (Practice and Procedure) Act 2023, it became a legal requirement
that cases involving the interpretation of the Constitution under Article 184(3)
should be heard by a bench consisting of at least five Supreme Court judges.
The verdict can be appealed, but this depends on the government's decision.
This case had received substantial
attention and sparked debates on the role of military courts in trying
civilians, with human rights groups and politicians expressing concerns about
civilian supremacy. An applicant had also requested an expedited hearing to
prevent the trial of his son from proceeding in haste without prior permission
from the Supreme Court.
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