SC rules against civilians’ court martial

A five-judge bench of the Supreme Court on Monday unanimously declared the trial of civilians in military courts as null and void and ordered that the 103 accused in cases relating to the violence on May 9 and 10, 2023 be tried under the ordinary criminal laws.

The court through the 4-1 majority also declared certain clauses of the Army Act as ultra vires the Constitution and of no legal effect. One judge of the bench, reserved his verdict on one para, though siding with the bench on the remaining paras.

The bench, led by Justice Ijazul Ahsan and including Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahir Naqvi, and Justice Ayesha Malik heard the petitions that had challenged the trial of civilians allegedly involved in the May 9 violence in the military courts.

The petitions, questioning the legitimacy of trying civilians in military courts, were filed by former chief justice Jawwad S Khawaja, senior lawyer Barrister Aitezaz Ahsan and others. The other day, the apex court was informed that trial of 103 people in the military custody had already begun.

The apex court announced a short order following hearing of the case on Monday. The five-member bench unanimously declared that civilians would be tried under ordinary criminal laws of the land in relation to such offences.

“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,” the court order said.

The court 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 Constitution Petition Nos.24, 25, 26, 27 & 28 and 30 & 35 of 2023 6 to trial by Court Martial) are and would be of no legal effect.”

The court, with a majority of 4-1, held that the trial of civilians under Section 2d(i) and 2d(ii) of the Army Act was unconstitutional. “It is hereby declared by Mr. Justice Ijaz ul Ahsan, Mr. Justice Munib Akhtar, Mr. 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 judgment read.

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

The court also dismissed nine petitions filed in favour of the military courts.

According to experts, clauses (i) and (ii) of Section 2d of the Army Act referred to action against persons who are not part of the defence forces. Subsection (4) of Section 59 stipulated the application of the Army Act on persons for offenses against any defence, armament, navy, army or air force establishment or station, ship or aircraft or navy.

The petitions were filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan; chief justice (retd) Jawwad S.Khawaja; Supreme Court Bar Association (SCBA); Barrister Aitzaz Ahsan; Karamat Ali; Zaman Khan Vardag; Junaid Razzaq; Hafeezullah Niazi; Lt Col (retd) Inam-ul-Rahiem and Naeemuddin Qureshi.

Hearing

Earlier, at the outset of the hearing, Chief Justice (retd) Khawaja’s lawyer, Ahmed Hussain, expressed his intention to read the order from the previous hearing. However, the judge reminded him that during the last session, the attorney general had presented his arguments and suggested allowing him to conclude his case before proceeding with other matters.

Lawyer Salman Akram Raja also argued that the military courts had started the trial of civilians despite giving assurances in the court but Justice Ahsan directed him to listen to the Attorney General of Pakistan (AGP) first.
AGP Mansoor Usman Awan provided a comprehensive summary of the previous hearing and explained why a constitutional amendment was not necessary for the present trial.

He further added that he would draw insights from Article 175 of the Constitution and read out the Liaquat Hussain case.

The AGP assured the bench that the accused in the May 9 case would be tried in military courts with the same procedural rigour as civil courts and argued that evidence would be recorded, and detailed reasoning would be provided in the verdict.

The court then inquired about the status of the accused. The AGP clarified that among the accused were both citizens and members of other organisations. They would be tried under a dual legal framework, adhering to the Army Act and civilian court standards.

The accused would be indicted, ensuring the due process requirements of a criminal case, he said. He also asserted that Article 10A of the Constitution would be upheld and appeals would be made to the high court and, subsequently, to the Supreme Court.

Justice Malik and Justice Naqvi then brought up the distinction between the Army Act’s emphasis on discipline within the armed forces and the law’s application to civilians. The AGP argued that the law extended to those temporarily associated with the armed forces and even the ones debarred from duty.

Continuing, Justice Malik asked about the Constitution’s commitment to protecting fundamental rights. She said that the law was meant to ensure that the fundamental rights of the Constitution would not be violated, rather than infringing on them.

AGP Awan, however, continued to defend his perspective, referring to the connection of individuals with the armed forces. Justice Malik further asked the AGP how he would connect his arguments with Article 8(3) of the Constitution.

“According to the law, a link to the armed forces is necessary [for trial in military courts],” she maintained. Justice Ahsan also remarked that the country’s Constitution protected fundamental rights.

The petitions stemmed from the events of May 9 in which civilian as well as military installations were targeted by protesters following the arrest of PTI chairman Imran Khan.

A total of 102 persons were taken into custody for their involvement in the attacks on military establishments, including the General Headquarters in Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, and others.

On Sunday, the relatives of detainees approached the Supreme Court, seeking to be party to the case. Their position was that the apex court was affected by the military courts’ proceedings and should, therefore, involve them in the case.

Simultaneously, the federal government informed the apex court that 102 individuals were arrested in connection with the May 9 and 10 incidents. They were assuring the court that trials in military courts would adhere to the ongoing apex court case.

The court was informed that those found guilty would receive light sentences, while those who had served jail terms would be released. After the military trial, the convicts would be able to approach the relevant forum against the punishments as per law.

The persons taken into military custody were arrested under the Pakistan Army Act 1952 and the Official Secrets Act. The arrested persons are in custody for their involvement in the attack on Hamza Camp, Bannu Camp and Gujranwala Camp.

The verdict can still be challenged in the apex court. According to sources, the federal government had decided to file an appeal against the decision. Under the Practice and Procedure Act, the appeal could be filed within 30 days, which should be fixed before a larger bench in 14 days.

Speaking to the media after the announcement of the verdict, one of the petitioners, Aitzaz Ahsan termed the ruling “very important”, saying that it would also strengthen democracy, Constitution and the justice system.

He added that the civilian institutions would gain confidence after the verdict and strive for improvement in their performance. He thanked the apex court for listening to the petitioners in the case and giving them the chance to speak.