Civilians’ trial by military courts: Six-judge bench suspends order of 5-judge bench

ISLAMABAD: The Supreme Court by a majority of 5-1 suspended the order of its five-judge bench, which had stayed the trials of civilians by military courts.

A six-member bench, headed by Justice Sardar Tariq Masood and comprising Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan, on Wednesday, heard a set of intra-court appeals (ICAs) against the SC’s October 23 verdict.

The bench after hearing the arguments of all parties reserved the order that it announced after half an hour. The short order said the military courts may continue the trials, but the final judgment will be subject to the outcome of this Court.

Justice Musarrat Hilali disagreed with the majority order.

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 on 23-10-23 declared that military trials of the civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, unconstitutional, illegal, and of no legal effect.

It, by a majority of 4-1, declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. The bench had also emphasized that the cases of the suspects involved in the vandalism would proceed before criminal courts. “It is further declared that any action or proceedings under the Army Act in respect of the persons, identified in the list provided to the Court by the learned Attorney General for Pakistan, or any other persons so similarly placed (including but not limited Constitution Petition Nos24, 25, 26, 27 and 28 and 30 and 35 of 2023 to trial by Court Martial) are and would be of no legal effect.

The caretaker federal government, Defence Ministry, Ministry of Interior, and the interim governments of the Punjab, Khyber-Pakhtunkhwa and Balochistan have filed the ICA against the five-member bench order.

The Sindh interim government also had filed the appeal but later withdrew it. During the proceeding, Justice Tariq refused to recuse from the bench saying former Chief Justice Jawad S Khawaja, who had filed an application for his recusal from the bench, had himself said that it is up to the judge to decide about recusal.

Copyright Business Recorder, 2023