Apex court with 4-1 majority says civilians trial will be conducted in ordinary courts; Justice Afridi gives dissenting note n Justice Ahsan remarks the Constitution protects citizens’ basic rights n SC bench issues notices to ECP, Federation seeking compliance of the Constitution to hold timely polls.

ISLAMABAD  -  In a landmark decision, the Supreme Court of Pakistan Monday declared the military trials of civilians arrested in the wake of violent protests in the country on May 9 null and void.

In a 4-1 majority ruling, the apex court said that the trial of May 9 suspects would be conducted in ordinary courts. However, Justice Afridi disagreed with the majority verdict.

A five-member larger bench, headed by Justice Ijaz ul Ahsan and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik heard about a dozen petitions challenging the trials of civilians by the military courts.

Justice Ijaz, Justice Munib, Justice Mazahar and Justice Ayesha held the sub clauses of Section 2(1)(d) of the Act ultra vires the Constitution, while Justice Yahya disagreed with them.

The written order said; “Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the learned Attorney General for Pakistan by way of CMA No.5327 of 2023 in Constitution Petition No.24 of 2023 and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of established under the ordinary and/ or special law of the land in relation to such offences of which they may stand accused.” The bench added, “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 Constitution Petition Nos.24, 25, 26, 27 & 28 and 30 & 35 of 2023 6 to trial by Court Martial) are and would be of no legal effect.”

“Justice Yahya Afridi reserves judgment as to para (i) above, but joins the other members of the Bench as regards paras (ii) and (iii),” stated the order. However, the verdict can still be appealed before a full court by the state. A six-judge bench, which included former chief justice of Pakistan (CJP) Umar Ata Bandial, had been hearing the petitions since June. However, after Justice Bandial’s retirement, the bench was reduced to five judges.

On Sunday, at least nine accused facing trials under the Army Act had moved the apex court for early conclusion of their cases by the military courts. In their separate applications, the suspects pleaded that they had complete faith and confidence in the military authorities to provide justice to them and to other accused persons.

Following the violence on May 9 which targeted civilian as well as military installations, a total of 102 persons were taken into custody for their involvement in the attacks on military establishments, including the General Headquarters in Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, and an office of the Inter-Services Intelligence (ISI) in Faisalabad.

At the outset of hearing, Attorney General for Pakistan Mansoor Usman Awan came to the rostrum and said that he would present arguments on why a constitutional amendment was not required in the case at hand. “A trial in military courts fulfils all the requirements of criminal courts,” he said. He also said that the military trials of civilians had formally commenced. He said that the verdicts issued by the military courts would also detail the reasoning. The AGP said that a matter concerning an attack on a restricted area or building could also go to military courts. At one point, Justice Ahsan asked, “A constitutional amendment was required to try terrorists but not for civilians? I am trying to understand your argument.” AGP Awan said that if the accused had a “direct link” to the armed forces, then a constitutional amendment was not required. He said that the suspects would be tried under Section 2(1)(d)(ii) of th Army Act. He then noted that the court had raised a question about the framing of charges against the suspects. “All the requirements of a criminal case will be met in the trial under the Army Act,” he said.

He further said that the trial of May 9 suspects would be similar to how it is conducted in criminal courts. “The reasoning will be given in the verdict and the evidence will be recorded,” Awan said. He said that all the requirements for fair trial under Article 10-A (right to fair trial) of the Constitution would be fulfilled. He said that appeals against the verdict could also be filed in the high courts and subsequently the apex court. During the hearing, Justice Ahsan asked about those who had been tried by military courts in the past. “Were the accused in 2015 civilians, foreigners or terrorists?” he asked. The AGP replied that the suspects included both nationals and foreigners. He said that those tried in 2015 also included those who facilitated terrorists. Justice Ayesha also asked the AGP how he would connect his arguments with Article 8(3) of the Constitution. “According to the law, a link to the armed forces is necessary [for trial in military courts],” she said. Justice Ahsan remarked that the Constitution protected the fundamental rights of citizens. Senior lawyer Usama Khawar said the Supreme Court’s verdict upholds the rule of law and constitutional rights, attempting to restore the crucial balance between civilian and military institutions. This landmark judgment underscores that while military courts have their role in specific military matters, they should not encroach on civilian matters or violate constitutional rights. This decision carries several critical implications. He said that the ruling emphasizes that civilians are entitled to their constitutional rights, including the right to a fair and public trial, legal representation, and the presumption of innocence. The verdict aligns with Pakistan’s Constitution, which upholds these principles. Usama said that the judgment safeguards the independence of the judiciary, emphasizing that civilian cases should not be tried in military courts. It underscores the importance of civilian courts upholding the rule of law and delivering justice. He further said that by nullifying the military trials of civilians, the court defends the principles of democracy and civilian supremacy enshrined in Pakistan’s Constitution. It reinforces the separation of powers between civilian and military authorities. He continued that the verdict provides legal clarity regarding the jurisdiction of military courts, ensuring that their role is limited to specific cases related to armed forces matters, as intended by the Constitution. The decision underlines the significance of upholding human rights and the right to a fair trial. It acknowledges that military trials may not consistently guarantee these fundamental principles. Meanwhile, another bench of Supreme Court issued notices to the Election Commission of Pakistan (ECP) and the Federation in the petitions seeking compliance of the Constitution to hold general elections within 90 days after the dismissal of the assemblies. A three-member bench of the apex court headed by Chief Justice of Pakistan Justice Qazi Faez Isa and comprising Justice Amin ud Din Khan and Justice Athar Minallah conducted hearing of the petitions of Supreme Court Bar Association (SCBA) and others seeking directives to hold general elections within 90 days as stipulated by the Constitution.