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.
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 the 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.
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.
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.”
