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On 23 October, a five-member bench of Pakistan’s Supreme Court gave a verdict against the trial of civilians by the military courts pertaining to the 9 May violence. The verdict saw a leaping majority; four out of five judges stated the trials as “unconstitutional and without legal effect.” The bench was led by Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Syed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik. The verdict ordered that the trial of the accused in the 9 May violence to proceed in criminal court for the civilians.
The Verdict – Pakistan Army Act “Ultra Vires”
According to the short order of the Supreme Court, the Pakistan Army Act (PAA) of 1952 is in violation of the constitution and it is “Ultra Vires” that is beyond its powers, making it of no legal effect. The accused were detained under PAA Section 2(1)(d) which stated that any person who is accused of seducing or an attempt to seduce anyone against his duty or has allegiance to the government and is committed to work under any branch of the Pakistan military or defence, can be tried under the act. While Section 59 (4) states that anyone who has been accused under PAA will be liable to be tried under this act. The Court ordered: “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.”
Additionally, petitions by nine accused of the 9 May urging the apex court to expedite the conclusion of their case under the military court were dismissed. Stating that they have full faith and confidence in the military authority. This was rejected by the court stating that the application was not supported by proper affidavits.
Background to the “Military Trials”
The incarceration of Imran Khan, PTI's chairman resulted in violent protests on 9 May, where the supporters and activists participated in vandalism of state and military installations. The then federal government decried the violence and demanded the need to try the accused under “military court,” leading to months of discussion and back-forth between parties and courts. In August the former Chief Justice of Pakistan Umar Ata Bandial put off the hearing related to indefinity stating that the court did not want the Army pointing guns at civilians. The statement was a response to Attorney General of Pakistan Mansoor Usman Awan’s point where he said that the soldiers performed restrain considering they are well trained to shoot.
Pakistan Army Act
The Pakistan Army Act (PAA) was established in 1952 for the special trial of military personnel under the act with their own legal code that is different from the civilian criminal court. The act aims to prosecute the military or any civilian linked with the military in the wrongdoing or violation of law. In 1966 during the military rule of Ayub Khan the purview of the law was extended to civilians participating in mutiny. The former cabinet consisting of the PML-N and the PPP coalition amended the Pakistan Army Act and the Official Secrets Act in 2023 under which once found guilty one could be detained for up to five years. Section- A of the amendment states: “Anyone who discloses or causes to be disclosed any information…shall be […] punished with rigorous imprisonment for a term which may extend to five years,” and Section 26-B forbids any participation by the accused under the act and a hiatus have to observed for two years after the release. The pressure imposed by the PDM coalition is heavily criticized as political targeting against the PTI leaders and their chairman Imran Khan before the general elections. The amendment further came under scrutiny as President Arif Alvi claimed that he did not assent to the Official Secrets Amendment Bill 2023 & Pakistan Army Amendment Bill 2023 and that his office disregarded his orders and furthered the bill.
Responses-Political parties, Legal fraternity, Media and Military
The verdict gathered laudations across the political, legal and civilian spectrum. Senior counsel Khwaja Ahmad Hosain called the Judgment “historic and bold,” with the court supporting the constitution without any fear or favour. He also said: “As long as courts were independent, challenges could be faced and overcome. The nations with independent judges giving decisions in accordance with their oaths of office flourish and prosper.” Advocate Usma Khawar said: “trailblazing verdict, challenging military trials for civilians, marks an unprecedented stride.” PTI lawyer Aitzaz Ahsan stated: “Today's verdict is highly significant and it will help strengthen the constitution, law, and the civilian institutions of the country. “The legal experts also weighed in on the verdict stating that as long as the civilian courts are functioning there is no need to try civilians under military.
The verdict also garnered staunch protest with Attorney General for Pakistan (AGP) Mansoor Usman Awan assuring a petition will be filed against the verdict. Expressing his disapproval, he believes that the military country fulfils all the requirements of criminal courts. He snidely remarked that: “Constitutional amendment was required to try terrorists but not for civilians? I am trying to understand your argument.” PML-N Deputy Secretary Ataullah Tarar said that there was no need for the appeal in the first place as the military court protects the rights of the accused.
An op-ed in Dawn, ‘Military courts’ suggested that the state would be better off accepting the order mandated by the Supreme Court. The author pointed out that the actions of the accused in light of the arrest of their leader did cross the line but the decision of their trial under court-martial was a bit excessive. The op-ed circles back to the excessive nature of the previous verdict and that they cannot be tried on par with actual terrorists and foreign spies. The trial would further the massive imbalance of power between the civilians and the establishment.
An Editorial in Dawn, ‘Situationer: Why these cases may not end up in ‘ordinary’ courts’ by Malik Asad stated even after the verdict it is unlikely that the accused will be tried under common criminal court and that they would be shifted to either the special court or anti-terrorism court which are opaque in nature as well. Asad highlighted an anonymous military law expert’s opinion that the verdict stands to question all the decisions made under military court and the previous incarceration under the same act. The verdict “incapacitated the army to proceed against a civilian even in cases pertaining to the “work of defence, arsenal, naval, military or air force affairs.”
It is expected that an appeal would be filed against the judgment demanding the trial under a controversial “military court.” What is to be considered is how long the discussion will be prolonged and what about the accused awaiting the judgment. The final verdict on the issue stands to be vital and would have an overarching effect on the political spectrum of Pakistan.
References
Nasir Iqbal, “SC strikes down ‘military justice’ for civilians,” Dawn, 24 October 2023
Haseeb Bhatti, “May 9 riots: SC declares military trials of civilians null and void,” Dawn, 23 October 2023
Malik Asad, “Situationer: Why these cases may not end up in ‘ordinary’ courts,” Dawn, 24 October 2023
“Military courts,” Dawn, 25 October 2023
Joel Guinto, “Pakistan: Supreme Court halts military trials of Imran Khan supporters,” BBC, 24 October 2023
“PML-N not happy with SC decision on military courts: Tarar,” The Nation, 24 October 2023
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