With two judges dissenting, the Supreme Court’s Constitutional Bench (CB) on Wednesday gave its go-ahead for civilians involved in the May 9, 2023 riots to be tried in military courts.

The case pertains to the military trials and the subsequent sentencing of civilians for their role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, 2023.

The 5-2 ruling came as the CB accepted a set of 38 intra-court appeals (ICAs) moved by the federal and provincial gover­nments as well as Shuhada Forum Balochistan, among others, against the widely-praised October 2023 ruling that declared that trying the accused civilians in military courts violated the Constitution.

Highlights:

• SC restores three provisions of Army Act struck down earlier
• Bench orders legislation within 45 days to ensure civilians’ right to appeal
• Minority ruling declares military court sentences as ‘without jurisdiction’, against Constitution
• Lawyers, PTI slam ruling, voice concern over fair trial

The bench — led by Justice Aminuddin Khan and also including Justices Jamal Khan Mandokhail, Naeem Akhtar Afghan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan — had been reviewing whether the trial of civilians in military courts was Constitutional or not.

Justice Aminuddin announced the 10-page short order of the majority ruling. The bench also directed the government to make the necessary amendments in the PAA within 45 days to allow the convicted individuals the right to appeal their sentences before a high court.

On the other hand, Justices Mandokhail and Afghan dissented from the verdict, dismissing the appeals in a separate order and upholding the earlier ruling that declared military trials as null and void.

That Oct 23, 2023 verdict by a five-member bench — led by Justice Ijazul Ahsan and comprising Justices Munib Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik — had declared the military trials of civilians as unconstitutional by a majority of 4-1.

While the bench unanimously emphasised that the cases of the May 9 suspects will proceed before criminal courts, the majority ruling had struck down Section 2(1)d(i) and 2(1)(d)(ii) as well as Section 59(4) of the Pakistan Army Act, 1952.

In today’s pivotal verdict, the constitutional bench — formed under the 26th Amendment — restored those sections of the PAA.

Section 2(1)(d)(i) says that those persons not otherwise subject to PAA become subject to the law if they were accused of seducing or attempting to seduce any army officer from his duty or allegiance to the government.

Likewise, Section 2(1)(d)(ii) says individuals could be tried under PAA if they have committed an offence in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan an offence under the Official Secrets Act 1923.

Section 59(4) says that any person who becomes subject to PAA will liable to be tried under this act.

The short order stated that by a majority of five judges, “ICA no.5/2023 and other connected appeals are allowed and the impugned judgment, dated 23.10.2023, […] is set aside.

“Whereas, Justice Jamal Khan Mandokhail and Justice Naeem Akhter Afghan dismissed the aforesaid intra-court appeals,” it added.

While the CB did not specify a timeframe, a detailed verdict is expected later as only short orders were issued today.

‘Rights struck a death blow’: Lawyers, PTI slam ruling

The PTI — whose supporters and activists are among those handed the sentences by military courts — and lawyers strongly criticised the verdict and expressed their concerns about the right to fair trial.

Lawyer Reema Omer termed the order “terrible”. “A pity the highest court of the land is on board with such militarisation of justice in the country,” she said on X.

Noting the court’s directives on legislation about right to fair trial, Omer said: “While important, [it is] insufficient to make military trials of civilians consistent with fair trial.”

She highlighted that the dissenting order clearly pointed out “how military trials of civilians violate the right to a fair trial in a number of ways, and why active military officers are not competent per se to conduct indepedent and impartial trials”.

In another post, Omer shared an analysis by the International Commission of Jurists that detailed why military trials “reflect a glaring surrender of human rights”.

Renowned rights activist and lawyer Jibran Nasir also strongly condemned the verdict, saying it had “surrendered our fundamental right to due process and fair trial”.

“Last night we faced an external threat from a foreign enemy. This morning we have been exposed to an internal threat to our democracy and freedom by our own Supreme Court,” he quipped, referring to the India-Pakistan military escalation.

Nasir affirmed: “While we stand with our armed forces to protect our borders, we in the midst of this crisis and wartime hysteria must not lose sight of the very constitutional rights and freedoms which we are fighting to protect.”

Lawyer Hassan A. Niazi lamented: “Pakistan’s fundamental rights — battered and waning — were struck a death blow today. Even the judicial arm cedes its space.”

The lawyer added that the dircetives on right to appeal could not “redeem the fact that civilian trials in military courts are unconstitutional and violate basic human rights”.

“We have entered the era of ‘militarisation’ of justice — spearheaded by a ’constitutional bench,” he said.

PTI MNA Omar Ayub Khan termed the ruling a “weaponised decision” that he said “would be used for targeting” Imran and his party.

“The decision has been given on a day when purportedly the installed regime and the establishment want to build ‘National Cohesion’,” he added, referring to the ongoing situation faced by the country in the wake of India’s strikes last night.

“The judges who have ruled in favour of allowing civilians trial in military courts will not be remembered kindly by history,” the NA opposition leader said, adding that the 26th Amendment was passed with “ill intent” and Imran as the “sole target”.

PTI Sindh President Haleem Adil Sheikh mentioned the timing of the verdict, saying, “Dropping the military courts verdict amid a war-like situation is a deliberate move to mask injustice.”

PTI’s Hammad Azhar said it was “despicable to use hostilities on the border to encroach on civilian rights and trample the Constitution”.

“Weak leaders use conflicts for personal branding whilst statesmen see it as [an] opportunity to unite the country,” he added.

Majority ruling

Detailing the reasons briefly, the majority order stated: “There was, in fact, no question with regard to the suspension of any fundamental right involved within the sphere of influence or realm of Article 233 of the Constitution.”

Recalling the arguments presented by Attorney General of Pakistan Mansoor Usman Awan, the order noted that 39 military installations, army works/establishments at various places were targeted/attacked “within a span of four to six hours”.

“Peaceful assembly, association, or public demonstration/protest within the bounds and precincts of reasonable restrictions imposed by the law is not prohibited, but without violating or breaking the law, or taking the law in one’s hands,” the ruling stressed.

It noted that the AGP had pointed out that due to the striking down of some sections of the PAA, no action can be taken even against “hardcore criminals and terrorists” involved in attacks on army installations, personnel or civilians, or against “persons accused of espionage or spies of enemy countries”.

Citing the cases of Brig (retired) F. B. Ali, Shahida Zahir Abbasi and District Bar Rawalpindi, the bench noted that the “various provisions were vigorously highlighted by the learned counsel for the appellants to demonstrate” that the right to a fair trial was fully protected under the PAA.

On the right to appeal, the order said that AGP Awan had reiterated that if the CB referred the matter to the government/parliament to amend the law and create a window of an independent right of appeal over and above the one already provided under Section 133-B of the PAA, it would be considered seriously.

Subsequently, the CB referred the matter to the government/parliament for “considering and making necessary amendments/legislation” in the PAA and allied Rules within 45 days to provide an independent right of appeal in the high court against the convictions handed by military courts under Section 2(1)d(i) and 2(1)(d)(ii) read with Section 59(4) of the PAA.

It clarified that individual cases/writ petitions before high courts challenging ATC orders, “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”.

“In our view, the provisions merely accentuating the right to a fair trial and due process in any statute and its actual application and proper implementation during the trial are two distinct features and situations,” the order stated.

The majority ruling further said: “We, in unison, sensitise the need for legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework.”

Minority ruling disagrees with military trials

In their dissenting order, Justices Mandokhail and Afghan set aside the convictions and sentences awarded to civilians by military courts over the May 9 riots, declaring them as “without jurisdiction”.

The judges observed that the trial of civilians by military courts violated Articles 2A, 9 (security of person), 10 (safeguards as to arrest and detention), 10A (right to fair trial), 19A (right to information), 25 (equality of citizens) and 227(1) (provisions relating to the Holy Quran and Sunnah) of the Constitution, as well as “offends the fundamental principle of independence of judiciary”.

They determined: “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 judges were of the opinion that suspects “who have completed/undergone their sentences or have been acquitted of the charge by the court martial or forum of appeal under the PAA shall have the effect of their discharge” under section 169 of the Code of Criminal Procedure.

The order pointed out that Section 2(1)(d) did not “qualify for exemption from fundamental rights” as it related to “persons not otherwise subject to the PAA (‘Civilians’)”, and hence, cannot be retained as part of the PAA .

“The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution, cannot prosecute civilians,” the judges observed.

They clarified that the reasons for their judgment would be detailed “later on”.

Military court convictions

On December 13, 2024, the SC’s constitutional bench conditionally allowed military courts to pronounce reserved verdicts of 85 civilians who were in custody for their alleged involvement in the May 9 riots.

Subsequently, on December 21, military courts sentenced 25 civilians to prison terms ranging from two to 10 years for their involvement. Days later, another 60 civilians were handed jail terms for a similar period over the matter.

On January 2, the mercy petitions of 19 accused were accepted on humanitarian grounds, while 48 other pleas have been processed to Courts of Appeal.

The sentencing of civilians by military courts was not only condemned by the PTI, but the United States, the United Kingdom and the European Union also raised concerns, saying the move contradicted international laws.