SC greenlights military trials of civilians

ISLAMABAD:

After holding nearly five dozen hearings, the Supreme Court's constitutional bench, by a 5-2 majority, has upheld the military court convictions of PTI activists accused of attacking military installations during the events of May 9, 2023.

In its order, the majority also urged the parliament to consider amending the Pakistan Army Act to grant civilians convicted by military courts an independent right of appeal.

The intra-court appeal and other connected appeals were allowed by five judges – Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Shahid Bilal Hassan – who also set aside the earlier judgment delivered on October 23, 2023, in the constitution petitions.

However, two judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhter Afghan – dismissed the intra-court appeals, according to the order announced in open court by the bench's head, Justice Aminuddin Khan.

The majority verdict has effectively overturned the earlier decision that had declared the trial of civilians in military courts unconstitutional.

"The impugned judgment is set aside and, as a consequence, subclauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, and subsection (4) of Section 59 of the same Act are restored," the order stated.

The bench clarified that the earlier verdict could not have declared these provisions void under Article 8(5) of the Constitution, which stipulates that fundamental rights cannot be suspended unless expressly provided for in the Constitution.

The order held that there was no issue of fundamental rights suspension under Article 233 in this context.

The court, in unison, emphasised the need for legislative changes that align with the International Covenant on Civil and Political Rights (ICCPR), in order to maintain constitutional and societal norms within the current legal framework.

"Therefore, the matter is referred to the Government/Parliament for considering and making necessary amendments/legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/Military Courts under sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952," the order reads.

The order further clarifies that the limitation period for filing an appeal against conviction will be calculated from the date of notification of the proposed amendments under the Pakistan Army Act, and such convictions will remain subject to the final decision by the high court.

The court also addressed pending writ petitions in high courts challenging anti-terrorism court orders related to the transfer of cases to military courts.

"The individual cases/writ petitions, if pending or filed in the high courts for challenging the vires of orders passed by the Anti-Terrorism Courts, allowing the transfer of case/custody of any accused to the Military Court for trial, shall be decided by such Courts on its own merits."

The order also directed the transmission of its copy to the attorney general, secretary general of the National Assembly, secretaries of the ministries of law and justice and defence, and the secretary of the law and justice commission, to ensure compliance.

The majority opinion further elaborated on the right to fair trial, observing that the provisions merely accentuating the right to a fair trial and due process in any statute and their actual application and proper implementation during the trial are two distinct features and situations.

It noted that if an independent right of appeal was provided in the high court for challenging the original order or internal departmental appellate order of conviction, "then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit".

Many were taken aback by the timing of the short order's announcement, coinciding with a moment when national unity was deemed crucial amid Indian aggression.

Following the order, PTI workers, representing the country's largest political party, expressed strong discontent over the majority decision.

Barrister Salahuddin Ahmed remarked, "Despite taking 6 months to deliver its first real judgment, CB proves it is performing exactly as per design specifications & operational parameters."

Asad Rahim Khan, who was part of the respondents' legal team opposing military courts, expressed dismay.

"The landmark significance of the previous verdict in 2023 was to have outlawed the very provision that enabled such trials: it declared Section 2(1)(d) illegal as a rule, in light of the right to fair trial," he said.

"Today's short order not only validates those trials, it has restored the law in general: civilians can thus be court-martialed again, even outside a state of exception."

He further criticised the legal foundation of the verdict. "The logic is fundamentally wrong: it relies almost entirely on FB Ali's case from half a century ago – a verdict that came about under emergency rule; that related to a brigadier for acts he committed in service; and that hinged on the long-dead 1962 Constitution".

He pointed out that there was no Article 10-A (right to fair trial) or Article 175(3) (independence of the judiciary) at the time of FB Ali. "Yet the short order has engaged with none of this."

"It must be said that a chain of deliberate disasters – destroying judicial independence – had to happen for this: the Practice and Procedure Act, the 26th Amendment, and now this Constitutional Bench, reaching for a precedent from ZAB's emergency rule, to validate an awful Ayub-era law. There can be no military trials of civilians in our constitutional order. History delivered its verdict on 23 October 2023," he added.

Minority opinion

The two dissenting judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan, both hailing from Balochistan – held that civilian trials by court martial violate core constitutional protections.

They argued that such trials breach the principles of judicial independence, personal security, protection against arbitrary arrest and detention, fair trial and due process, access to information, equality of citizens, and Islamic injunctions as guaranteed under Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution.

They further maintained that such trials are inconsistent with international human rights commitments:

"The trial of civilians by courts martial presided over by active military officers, is violative of the recognised covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory."

They concluded that the military's role, as defined by the Constitution, does not encompass such trials:

"The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution," says the minority opinion.

As such, the minority set aside all convictions:

"The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside."

"The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law."

"The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure (CrPC)."