Military courts allowed to pronounce verdicts in May 9 cases

Constitutional Bench gives conditional nod CB does not assign any legal reasoning Says in case of conviction rio

ISLAMABAD:

Without assigning any legal reasoning, the Constitutional Bench (CB) of the Supreme Court has conditionally allowed military courts to announce their verdicts in 85 cases of civilians who are in army's custody on charges of attacking military installations on May 9, 2023.

A seven-member CB led by Justice Aminuddin Khan issued this order on Friday while hearing the federal government's intra court appeals (ICAs) against a five-member bench's October 23, 2023 judgement in the military courts case.

The CB in its written interim order said that military courts are allowed to announce their verdicts in cases of the accused whose trials are concluded in view of the SC's December 13, 2023 order.

On December 13, 2023, a six-member larger bench of the SC—while hearing the ICA filed by the federal government—suspended the SC's October 23 order by a majority vote of 5 to 1 and conditionally permitted the trials of civilians in military courts.

The CB in its written order said counsels for the parties pray and agree that the injunctive order granted on December 13 be modified on the analogy order dated March 28, 2024.

"Now a modification is made to the extent that the final judgment of 85 persons who are under custody and facing trial before the military courts, be announced and the remissions admissible to the said persons be granted…

"[The] persons who can be released after remissions be released forthwith and the persons who have to yet undergo the sentence awarded to them, their custody be handed over to the concerned jail authorities," it added.

The order referred to the statement of the additional attorney general who stated that these accused will be dealt with in accordance with the jail manual.

"The announcement of judgment will be subject to final determination of these appeals and without prejudice to the rights of the said 85 accused persons," it added.

The CB ordered its office to re-listed the case after winter vacations "subject to availability of the bench." The two-month tenure of the bench is going to expire on January 6.

Interestingly, the bench did not highlight any legal reasoning as to how it conditionally allowed the trial of civilians in military courts on December 13 last year. It also did not refer to any legal precedent as to why military courts are being conditionally allowed to announce their decisions.

There has been an extraordinary delay by the apex court in deciding the fate of PTI activists who were taken in military custody after May 9 incidents sparked by the arrest of PTI founder Imran Khan from the premises of the Islamabad High Court.

Initially, the three-member SC committee did not include outspoken judges in the larger bench hearing the government's ICAs against the October 23 judgement which declared trials of civilians in military courts unconstitutional.

Commenting on the verdict, former additional attorney general Tariq Mahmood Khokhar said the CB did not engage in any expository jurisprudence and there was no attempt to interpret Article 10A of the Constitution.

"The bench merely allowed the military courts to announce their judgments on those facing trial and directed the practical application of Prison Rules for remissions in specific cases.

"The practical outcome appears ludicrous: persons convicted and sentenced will likely serve their sentences or significant part thereof before the Supreme Court decides their cases; others will remain incarcerated pending their acquittal. Irreparable injury will be inflicted alike, on the acquitted and the convicted"

Khokhar said up to 18 months of incarceration was not sufficient to warrant bail consideration.

He said the rule of law requires compliance by the state with its obligations in international law as well as national law: the former requires a right to fair and public hearing by a competent, independent and impartial tribunal.

The lawyer said had the military trial case been decided early, it would have been fair, but the case was delayed till the enactment of the 26th Constitutional Amendment and formation of constitutional benches.

"Do not think its [the CB's] hearing today and in the near future would further the cause of justice. The bench has decreed another legal astonisher," he said.

Khokhar said our jurisprudence is being rewritten, and Pakistan will fail again in its obligations under the international law.

However, Hafiz Ahsaan Ahmad stated the order issued by the seven-member bench on Friday regarding allowing the military courts for announcement of judgments is not in any case against the concept of independence of judiciary or infringement of any fundamental rights.

"It was unprecedented when the SC's judgment of October 23 was suspended by the Appellate Bench on 13th December, 2023. There was no legal justification to restrain military courts from announcing their judgments in the May 9 cases.

"Now the convicts will have the right of appeal to challenge before the next forum and can get the remissions under the Pakistan Army Act, 1952. They will also be shifted to ordinary jails."

He said before the October 23 order, the SC had never declared that civilians cannot be tried on violations of military laws by military courts.

Rather, it had simultaneously held that the amendments introduced in 1967 in Army Act in section 2 and 59 relating to civilians—including the serving civil employees of armed forces, the army retired officials, the foreign nationals and ordinary Pakistani nationals—and the applicability of Official Secrets Act was neither against the due process of law nor against the fundamental rights nor violation of Article 25 of the Constitution.

He said when at the SC declared the law is intra vires then subsequently a minor bench of SC cannot overturn the majority view in subsequent proceedings and that point was correctly and legally identified by the present chief justice when he gave his dissenting view being part of that bench which announced its judgment on October 23, 2024.

"This is not legally unusual or extraordinary that civilians who violate military laws or attack military installations or fight against the state while challenging the state authority are legally tried by military courts. This happens in many countries around the world and has been happening in Pakistan for the last 50 years," Ahsan added.

The military courts saga

The PML-N led coalition government agreed with the military leaders after the May 9, 2023 incidents of vandalism that the people involved in rioting be tried in military courts.

The issue landed in the apex court in June last year. Former CJ Umar Ata Bandial assembled a nine-member larger bench under his leadership to address petitions contesting the trials.

However, former CJ Qazi Faez Isa, and Justice Sardar Tariq Masood declined to participate in the bench on June 22 until a final decision was made on the Supreme Court Practice and Procedure Act 2023.

Subsequently, a seven-member bench under the leadership of former CJ Bandial commenced hearings on the petitions challenging the trials of civilians in military courts.

As the case neared its conclusion, the government raised an objection to inclusion of Justice Syed Mansoor Ali Shah in view of his relationship with one of the petitioners, Jawwad S Khawaja, a former CJ.

Consequently, Justice Shah recused himself from hearing the matter. a six-member bench, led by former CJ Bandial, resumed the hearing.

As the proceedings were nearing completion, Justice Bandial adjourned the hearing indefinitely due to the unavailability of some members.

Despite requests from the petitioners' counsels, especially Latif Khosa and Aitzaz Ahsan, for a few more hearings to conclude the proceedings, the bench was not inclined to do so.

Following the endorsement of the SC Practice and Procedure Act, 2023, the case was scheduled before a five-member larger bench under the leadership of Justice Ijazul Ahsan on October 23 last year.

After just one hearing, the bench pronounced that trials of civilians in military courts are unconstitutional.

The decision came as a significant surprise not only to the government but also to various segments of society. Subsequently, the federal government filed ICAs against the SC decision of October 23, 2024

A three-member SC committee, headed by CJ Isa, established a six-member larger bench to adjudicate the government's ICAs.

Several lawyers, including committee member Justice Ijazul Ahsan, raised objections to the composition of the larger bench on various grounds.

Justice Ahsan, who later resigned as an SC judge, penned a letter to the committee outlining his objections to the formation of the six-member larger bench.

In his letter, Justice Ahsan highlighted that it had been agreed upon that since the judgment concerning the trial of civilians by military courts had been delivered by a five-member bench of the court, a seven-member bench would be constituted to hear the appeals.

Justice Ahsan revealed that the CJ had agreed with his viewpoint but proposed that he would consult with other judges. If any judge declined to participate, the next available judge would be included.

Proceeding without the approval of the committee meeting minutes by Justice Ahsan, a six-member larger bench, led by Justice Sardar Tariq Masood, was formed to hear the government's ICAs.

In December of last year, the larger bench by a majority vote of 5 to 1, suspended the decision made on October 23 and conditionally permitted the trials of civilians in military courts.

The case was adjourned for a couple of months, despite objections raised by the petitioners against Justice Masood's presence.

In late January, Justice Masood recused himself from hearing the case following objections raised by the petitioners. Nearly two months later, the SC committee restructured the larger bench under the leadership of Justice Aminuddin Khan to handle the government's ICAs.

The Supreme Court had sought a reply from the federal government regarding individuals who had received short jail terms and those who were awaiting release, or had been acquitted. On March 27, the same bench authorized military courts to deliver verdicts in cases resulting in short-term convictions.

Attorney General for Pakistan Mansoor Awan had informed the bench on April 8 that 20 individuals had been released after receiving one-year sentences. Later on, the bench again referred the matter to the committee for the reconstitution of a larger bench in this matter.

Before the start of summer vacations, a seven- member larger bench led by Justice Aminuddin Khan resumed the hearing. After the couple of hearings, the matter was adjourned. Now the same bench except Justice Shahid Waheed has taken up the matter.