ISLAMABAD: The Supreme Court, on Monday, declared the trial of civilians arrested in the aftermath of the 9th May incidents, null and void and ordered that they be tried by criminal courts established under the ordinary and/ or special law.
The court by a majority of 4-1 also declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect.
A five-member larger bench, headed by Justice Ijazul 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 trial of civilians by 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 competent jurisdiction established under the ordinary and/ or special law of the land in relation to such offences of which they may stand accused.
“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 to trial by Court Martial) are and would be of no legal effect.
“Justice Yahya Afridi reserved the judgment as to para (i) of the order, but joined the other members of the bench with regards to paras (ii) and (iii),” stated the written order.
After the judgment on the Practice and Procedure Act, 2023, the verdict is appealable before a larger bench of the Supreme Court.
During the proceeding, Attorney General for Pakistan (AGP) Mansoor Usman Awan submitted; “A trial in military courts fulfils all the requirements of criminal courts.” He said the military trials of civilians had formally commenced, adding the verdicts issued by the military courts would have detailed reasoning.
The AGP said that a matter concerning an attack on a restricted area or building could also go to military courts. Justice Ijaz inquired; “A constitutional amendment was required to try terrorists but not for civilians? I am trying to understand your argument.”
The attorney general 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 the 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 the trial conducted in criminal courts.
“The reasoning will be given in the verdict and the evidence will be recorded,” the CJP said. He said all the requirements for a fair trial under Article 10-A (right to a 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.
Justice Ahsan questioned who were those tried by military courts in the past. “Were the accused in 2015 civilians, foreigners or terrorists?” 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 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 Ijaz said the Constitution protected the fundamental rights of citizens.
On Sunday (October 22), at least nine accused facing trials under the Army Act 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.
A nine-member bench, headed by ex-CJP Umar Ata Bandial, and comprising Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik, on June 22, began hearing the petitions.
However, Justice Faez, Justice Tariq, and Justice Mansoor recused from the bench in view of the Practice and Procedure Act, 2023. Later on, a six-judge bench, headed by former chief justice Bandial, heard the case until August 3.
After Justice Bandial’s retirement, the bench was reduced to five judges, which after hearing the attorney general, reserved the judgment that was announced at 03:00 pm.
Former chief justice of Pakistan Jawwad S Khawaja, senior lawyer Chaudhry Aitzaz Ahsan, members of civil society, and Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan have filed the petitions under Article 184(3) of the Constitution asking it to declare that the trial of the civilians, arrested in light of May 9 and 10 violent protests, under the Army Act and Official Secret Act violative of Article 25 of the constitution, until and unless legal and reasonable guidelines are framed to structure the discretion not to arbitrarily try civilians under Army Act.
On July 4 advocate Lt-Col Inamul Rahiem (retd) also filed a petition to set aside the trials, conviction and sentence of 25 civilians conducted during the period of ex-prime minister Imran Ahmed Khan Niazi being the chief executive of the country. He also cited former COAS General Qamar Javed Bajwa (retd), and ex-DG ISI Lt-Gen Faiz Hameed (retd), Judge Advocate General, JAG Branch GHQ, and registrars of all provincial and Islamabad High Courts as respondents.
Copyright Business Recorder, 2023
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