Lawyers hail ‘courageous’ SC verdict on military trial of civilians

"Today's verdict reminds us why citizens still look to the court for justice," said Barrister Asad Rahim Khan.
Published October 23, 2023

In a much-awaited verdict, a five-member bench of the Supreme Court declared the military trial of the 102 civilians arrested following the May 9 protests null and void. The bench was headed by Justice Ijazul Ahsan and comprised justices Munib Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi, and Ayesha A Malik.

Lawyer and former senator, Aitezaz Ahsan, who was among the petitioners in the case — termed the verdict “very important”, adding that it would also “strengthen democracy, the Constitution and the justice system”.

“The decision is so important that all institutions must now realise that the Supreme Court has pronounced that the law is above you.”

A good day for the Constitution

Lawyer Rida Hosain called it “a historic and brave decision”.

“In the face of immense pressure, the Supreme Court has held that justice for civilians cannot and will not be handed over to the military. The section in the Pakistan Army Act 1952 which allowed for the trial of civilians in military courts has been declared as unconstitutional. Civilians in military custody will be tried in the ordinary criminal courts.

“At its core, this case was about the fundamental rights guaranteed by the Constitution. The right to a fair trial is an absolute right,” she declared.

Speaking of military court trials, Hosain remarked: “Court-martial proceedings are grossly unfair — serving army officers with no legal training act as judges; there is no right to a reasoned judgment with decisions often simply stating ‘guilty’ or ‘not guilty’; trials take place in secret; and there is no meaningful right to appeal.”

“In declaring military courts for civilians unconstitutional, the court has in the true sense defended, protected, and preserved fundamental rights … Today is a good day for the country and the Constitution,” said Hosain.

Lawyer and special assistant to the Sindh chief minister, Mirza Moiz Baig commented: “The Supreme Court’s decision today is in keeping with the principle that civilians should ordinarily be tried by courts of ordinary criminal jurisdiction.

“While Section 2(d) of the Army Act, 1952, provided for certain exceptional circumstances under which a civilian may be tried by a military court, the Supreme Court, by striking down Section 2(d) of the Act, as media reports suggest, has closed the doors for the trial of civilians by military courts.”

Restoring trust in courts

Barrister Asad Rahim Khan termed the SC’s order “courageous and potentially expansive”.

“While upholding an ageless principle — that civilians cannot be tried by military tribunals as long as civilian courts are functional — it has also struck down exceptions to the rule. “

Depending on what the detailed reasons in the court order will say, Rahim is of the opinion that the verdict “removes any ambiguity left over from earlier judgments.”

“Today’s verdict reminds us why citizens still look to the court for justice,” he said.

Lawyer and columnist Reema Omer wrote on X [formerly Twitter] that if the media reports of the verdict were true, the judgment is “truly historic”.

“Not only does it mean 9-10 May violence accused will be tried by regular courts, it would also allow other civilians convicted by military courts (for example Idrees Khattak) opportunity for relief and [will] prevent such military injustice in future,” she said.

Lawyer Hassan A Niazi termed the verdict an “excellent and brave step by the Supreme Court to show that there is still life left in our Constitution despite the setbacks of the past year.”

However, he warned that “it must now guard against attempts to subvert this decision.”

Unprecedented development

Lawyer Usama Khawar too hailed the SC verdict as “a significant and unprecedented development in Pakistan’s constitutional and judicial history.”

According to Khawar, there are several compelling reasons that make this judgment exceptional:

  • Defying Historical Patterns: The SC verdict on the May 9 rioters’ case is a groundbreaking departure from historical patterns. Previous judgments challenging military interests, such as the Asma Jillani case against Yahya Khan, the declaration of Zia’s dismissal of the Junejo government, the decision declaring Musharraf’s emergency illegal, and the order for Musharraf’s treason trial all came after the military’s power had significantly diminished. In contrast, this verdict challenges military interests at their peak. The Pakistan Army’s Formation Commanders Conference at the GHQ, confidently asserted that they possessed “irrefutable” evidence against the May 9 rioters, setting a clear agenda. Furthermore, broad political support for military trials, including backing from Parliament, political parties, and at various governmental levels, indicated widespread acceptance of the military’s decision.

  • Advancing the right to fair trial: The judgment is a major step in advancing the ‘right to fair trial’, enshrined in the Constitution through the 18th Amendment. It progressively interprets Article 10A and could have profound implications for other laws that may impede the right to a fair trial.

  • Revisiting Praetorian laws: The decision is a serious attempt to revisit praetorian laws that have not been examined since the inclusion of the right to fair trial in 2010. This highlights the court’s role in evolving and adapting the legal framework to align with constitutional principles.

  • Restoring confidence in the judiciary: The verdict is likely to increase public confidence in the judiciary, which had suffered since May 9, due to orders being openly flouted without significant consequences.

  • Boosting the Supreme Court’s credibility: The verdict enhances the credibility of the Supreme Court by demonstrating its independence. It indicates that the court is not a one-person show dominated by the chief justice, boosting internal judicial independence, and that it is not just rubber-stamping military’s preferences.

  • Chief Justice’s neutrality: The verdict suggests that the Chief Justice Qazi Faez Isa is not manipulating or influencing judicial decisions in favour of the establishment or the government. It also implies that the expectations that the new CJP would align with these interests are misplaced.

Constitution above all

Lawyer Ayman Zafar recounted the precedence of civilian trials in military courts: “If we go back in history, a nine-member bench of the Supreme Court in Liaqat Hussain’s case declared military courts unconstitutional and struck them down.”

“Then In 2015, the Supreme Court validated the use of military courts, albeit, through a constitutional amendment containing a ‘sunset clause’,” she recalled, adding that “this illustrates the Supreme Court’s unanimity regarding the Constitution even back then, which in its present form does not allow for civilian trials in military courts, and any such endeavour may only be undertaken by way of a constitutional amendment.”

“While the military may act in aid of civil power, per Article 245 of the Constitution, this meaning cannot be expanded to grant them a judicial role,” Zafar explained. “The current setup of military courts lacks provisions for an appeal to the superior courts of Pakistan, restricting appeals to the Chief of Army Staff.”

“There is already a special anti-terrorism court in place to deal with cases involving terrorism. Any deviation from these courts would create a ‘parallel judicial system’, violating the independence of the judiciary. The Supreme Court, fully aware of the fact that condoning such practices would create an atmosphere of interference in the domain of other branches, has declared military trials of civilians null and void, and against the tenets of the Constitution.”

“The victims and citizens of Pakistan undoubtedly deserve truth and justice in the wake of the May 9 riots and the destruction of public and private property. However, the pursuit of this crucial objective should revolve around transparent and equitable trials within the existing civilian court system for those responsible instead of resorting to military trials for civilians to ensure that justice is served. This approach would help maintain the integrity of the legal process while addressing the demands for accountability.”

“Today’s verdict holds significant historical and legal implications. It not only means that individuals accused in connection with the events of May 9 will now face trial in civilian courts but also paves the way for potential relief for other civilians previously convicted by military courts. Moreover, this ruling sets a precedent aimed at preventing future instances of military injustice and the undue exercise of power in such crucial matters, where the lives and well-being of civilians are at stake, and fundamental human rights stand on the brink of being compromised.”

Principle settled by court

Lawyer Muhammad Ahmad Pansota welcomed the verdict, adding that the “basic premise upon which these entire proceedings were rotating was that a civilian can and must not be tried under the Military Act or military court.”

“I think that principle has been settled in the judgment by the Supreme Court today. Also, the amendments that were made by the government to regulate the trial of the accused persons, they also appear to have been struck down or have been declared unconstitutional.”

Pansota added that now that the cases will be decided on merits, most likely by the anti-terrorism courts, “I think there is a greater chance for those who were involved in the ordeal of May 9 to be punished in accordance with the law, and most probably people who were involved in this will be punished.”

“Thus I think it will serve in a much better way for the complainant, as far as dealing with the accused persons is concerned,” he added.

“Finally, I think this judgement will be appealed by the Government of Pakistan, now that there is a right of appeal under the new law, the Practice and Procedures Act, 2023. I think it will be appealed and that will be interesting to see. The last time military courts were taken up by a full court bench in 2015, so let’s see what CJP Isa does in this case and what larger bench he forms.”

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