Senate deems SC’s military trial ruling flawed

Resolution says court attempted to rewrite law by impinging upon legislative authority

ISLAMABAD:

The Senate on Monday passed a resolution against the Supreme Court’s decision that declared unconstitutional the military trials of civilians for their alleged role in attacks on army installations on May 9.

Senator Dilawar Khan presented the resolution, which gained majority approval despite opposition from PPP Senator Raza Rabbani and Jamaat-e-Islami Senator Mushtaq Ahmed.

However, their attempt to address the upper house was denied by the Senate chairman, who adjourned the meeting until 10:30am on Tuesday (today).

The Senate’s decisive step came as the government was reportedly considering challenging the apex court’s decision.

The five-member Supreme Court bench, led by Justice Ijazul Ahsan and including Justice Munib Akhtar, Justice Yahya Afridi, Syed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik, had, on October 24, declared military trials of civilians for their alleged role in the May 9 attacks as unconstitutional by a majority vote of 4-1.

The bench unanimously decided that cases related to the accused involved in the May 9 incidents would now proceed before criminal courts. Additionally, the court declared Section 2(1)(d) of the Army Act, defining persons subject to the Act, as a violation of the Constitution and "of no legal effect."

Moreover, Section 59(4) (civil offences) of the Act was deemed unconstitutional, with Justice Afridi dissenting from the decision to strike down these sections.

‘Impinging upon parliament’s legislative authority’

The resolution tabled in the upper house said that “prima facie an attempt has been made to rewrite the law by impinging upon the legislative authority of parliament”.

“The Senate of Pakistan calls upon the apex court to reconsider its decision, urging alignment with the national security paradigm and sacrifices of the martyrs in order to address the concerns raised regarding the ramifications of the judgment on the security and stability of the nation,” it read.

It stated that the invalidation of the jurisdiction of army courts is likely to facilitate vandals and abettors of terrorism and anti-state activities. Military courts have played a pivotal role in delivering justice, particularly concerning acts of terrorism, often instigated by neighbouring adversaries within Pakistan’s borders.

The resolution further said that it resonated with the concerns and sentiments expressed by various stakeholders in particular and the public in general, regarding the SC’s judgment, taking exception to overriding an Act of Parliament, which was well within the previous and existing scheme of the constitutional and legislative framework and duly enacted under the legislative competence of the parliament.

It reiterated that the trial of those accused of violence against the armed forces under the Army Act “is an appropriate and proportional response in line with Pakistan’s existing constitutional framework and statutory regime”.

Within the country’s constitutional framework, the trial of individuals accused of anti-state vandalism and violence under the Army Act serves as a deterrent against such acts.

Firmly standing with the families of martyrs, who have made significant sacrifices for the country, and have expressed feelings of insecurity and treachery due to this decision, the resolution stated.

It fully endorsed the concern of the families of martyrs that the absence of military court trials is likely to encourage or embolden those responsible for acts of terrorism due to the lack of stringent justice in regular courts.

It stated that noting with concern that judgment annuls the sacrifices made by martyrs of the armed forces, civilians and law enforcement agencies in combating terrorism.

The resolution noted that the military courts have played a significant role in addressing terrorism by ensuring that those responsible for terrorist acts are brought to justice.

‘Abandoning the spirit of martyrdom’

However, this judgment while abandoning the spirit of martyrdom, grants lenient option to terrorists, anti-state actors, foreign agents, and spies to be tried in normal courts.”

The resolution further said that the apex court “has not taken into consideration the existing procedures which make it abundantly clear that the sentences given by military courts are not arbitrary and are conducted following due process and formalities”.

While interpreting a certain provision the overall scheme that the certainty of well-deserved and warranted punishment, rather than its severity, is a crucial deterrent, has been missed.

The existence of an appeal process against military court orders, which involves appeal avenues with the chief of army staff and the president, as well as the option to file writ petitions in high courts that may eventually reach the SC, has been overlooked.

“The provisions of the Army Act and underlying procedures ensure that the right to a fair trial under Article 10A of the Constitution is not violated.”

It reaffirmed that May 9 would be remembered as a dark day in the history of the country and condemned the anti-state acts committed against the armed forces, which the enemies of Pakistan could not even dare to think of committing.

‘May 9 culprits deserve no empathy’

In a strongly worded resolution, the resolution further asserted that the culprits of the May 9 riots, who blatantly attacked defence installations and disgracefully dismantled memorials of martyrs, “deserve no empathy or leniency rather they should be tried in military courts and stringent punishments be given to make them an example for internal and external enemies to Pakistan by creating a deterrence and upholding the supremacy of the state.”

The resolution recalled that an amendment to the Army Act, specifically the addition of Section 2(1)(d), allowing for the trial of civilians who commit offences like attacking military installations by military courts was carried out in 1967.

“Civilians have been tried in military courts in the past under this provision, and sentences have also been duly carried out. More so, the previous decisions of the Apex Court have upheld trials under the Army Act by a majority.”

“The bench which announced the recent judgement was not in unanimity as opposed to the previous benches which upheld trials of civilians under the Army Act, hence the decision is legally flawed and should not be implemented unless it is considered by a larger bench,” the resolution added.

Shift in Afghan policy

Earlier, speaking on the floor, Pakistan Muslim League-Nawaz (PML-N) Senator and former finance minister Ishaq Dar blasted the policy of engaging with the Afghan Taliban following their takeover of Kabul in August 2021.

Addressing the Senate, Dar, without explicitly naming any entity or individual, accused those responsible for the policy shift of releasing "hardened criminals," presumably referring to the Tehreek-e-Taliban Pakistan (TTP) in a bid for peace.

Dar's comments were widely interpreted as directed at the Pakistan Tehreek-e-Insaf (PTI) government, led by former prime minister Imran Khan. He criticised the apparent foreign policy shift, asserting it was executed without consultation with allies and at the behest of a few individuals.

He questioned the necessity of certain individuals travelling to Afghanistan for a "photo session," alluding to former DG-ISI General (Retd) Faiz Hameed's visit to Kabul, where he was quoted as saying that "everything will be ok" after the Taliban took control.

Dar contended that this policy shift, seemingly extending support to the Afghan Taliban, has led to an unprecedented surge in terrorist attacks within Pakistan.

His remarks come in the wake of Pakistan's chief diplomat for Afghanistan, Asif Durrani, alleging that the outlawed Tehreek-e-Taliban Pakistan (TTP) is under the control of the Afghan Taliban, causing strain in bilateral relations between the two neighbouring countries.

Meanwhile, speaking on the floor of the upper house, Caretaker Interior Minister Sarfraz Bugti conveyed a belief in the shared Islamic brotherhood between Pakistan and Afghanistan.
Delving into the historical context since Pakistan's inception in 1947, Bugti highlighted initial opposition from Afghanistan regarding Pakistan's creation.

Touching on the issue of violence and blasts within the country, Bugti suggested that both nations had been involved in a proxy war.

He expressed concerns about Afghan businesses operating in urban areas without paying taxes and emphasised the caretaker government's commitment to establishing a state with equal rights for all.

Providing statistics on repatriation, Bugti said that approximately 300,000 people had returned, with only 8,000 sent back by Pakistan, and the rest returning voluntarily.

Pakistan Tehreek-e-Insaf’s Senator Humayun Mohmand addressed concerns about the repatriation of Afghan refugees, emphasising the need for a distinction between legal and illegal immigrants.

Mohmand questioned the reasons behind categorising certain individuals as illegal immigrants and criticised the alleged release of terrorists.

He pointed out that the most peaceful period in the last two decades was during the PTI rule. Mohmand accused certain individuals of engaging in what he termed as "dirty politics" while avoiding accountability for their own policies over the past several decades.

Renowned Pakistani journalist and Senator Irfan Siddiqui also raised concerns over the sudden repatriation of three generations of Afghan refugees, stating that they were initially welcomed with open arms but are now being forcibly sent back.

Siddiqui emphasised the need for a fair and just process, suggesting the establishment of a tribunal to oversee the repatriation process.