A five-member larger bench of the Supreme Court on Monday declared military trials of civilians arrested in the wake of the May 9 riots to be null and void, with presiding judge Ijazul Ahsan questioning how civilians could be tried under the Army Act.
Announcing the ruling a few hours after reserving it, Justice Ahsan was accompanied by Justices Munib Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha Malik. In a 4-1 verdict, the bench ruled that Section 21-D of the Army Act allowing cases against civilians encouraging mutiny was in violation of law. However, the order to annul ongoing trials of civilians in military courts and proceed against them in civilian courts was approved unanimously.
The case had initially been taken up by a six-judge bench under former chief justice of Pakistan (CJP) Umar Ata Bandial, but had been reduced to five after his retirement last month. However, after Justice Bandial’s retirement, the bench was reduced to five judges. The apex court had taken up the petitions concerning approximately 102 suspects in June. It has yet to issue a short order.
Speaking to the media after the verdict was announced, Aitezaz Ahsan—one of the petitioners—described the ruling as “very important,” claiming it would strengthen democracy, the Constitution and the judiciary.
Earlier, the bench had resumed hearing 13 challenges to the military trials of civilians after a gap of several months. Among the petitioners were former Chief Justice of Pakistan (CJP) Jawwad S. Khawaja; senior counsel Aitzaz Ahsan; Karamat Ali; Zaman Khan Vardag; Junaid Razzaq; the Supreme Court Bar Association; PTI chief Imran Khan; Hafeezullah Khan Niazi; Lt. Col. (retd.) Inamul Rahim, and Naeemullah Qureshi.
During today’s proceedings, Attorney General of Pakistan (AGP) Mansoor Usman Awan completed his arguments on the domain and scope of military courts to try civilians under the Army Act.
At the outset of the hearing, lawyer for a petitioner Salman Akram Raja told the bench that trials of civilians had already commenced before the top court could issue its verdict on their legitimacy. To this, Justice Ahsan observed that the method of conducting proceedings would be settled after the AGP’s arguments were completed.
In his arguments, the AGP said he would explain why a constitutional amendment was necessary to form military courts in 2015 to try terrorists, adding there had been both local and foreign accused at the time. Referring to the present military trials, he said the accused would be tried under Section 2(1 (D) of the Official Secrets Act and a trial under the Army Act would fulfill all the requirements of a criminal case. “The trial of the May 9 accused will be held in line with the procedure of a criminal court,” he added.
A day earlier, the federal government informed the apex court that the military trials of civilians had already commenced. In a miscellaneous application, the government told the court 102 people were taken into custody due to their involvement in attacks on military installations and establishments.
After concluding the hearing, Justice Ahsan indicated the court would strive to issue a short order quickly to resolve the uncertainty over the trials. He also directed a lawyer for accused seeking expedited military trials to submit fresh pleas after obtaining their statements under oath and dismissed their petitions to be included in the trial.
Expedited military trials
Ahead of the Supreme Court resuming proceedings on petitions challenging the trials of civilians in military courts, nine accused facing trials under the Army Act approached it expressing complete faith and confidence in military authorities to ensure justice to them and their co-accused persons.
In their pleas, the accused—Khalmat Khan, Ijazul Haq, Muhammad Rashid, Abdul Sattar, Rashid Ali, Muhammad Abdullah, Umer Muhammad, Hassan Shakir, and Faisal Irshad—have requested the Supreme Court to direct military authorities to expedite their trials under the Army Act. They had also sought to be included as a “necessary party” in the case pertaining to military trials of civilians, as they were all involved in the May 9 riots and were currently in military custody for investigation and trial. Asserting that they had not been tortured by military authorities during the course of investigations, they urged the court to direct military authorities to try them under the provisions of the Pakistan Army Act and rules made thereunder so that justice could be provided to them expeditiously.
The applications have maintained they were moved of their free will, without any pressure and coercion. “Therefore, being aggrieved, the applicants must be considered necessary and proper party to be impleaded in the case for redressal of their grievances,” read the applications.