Verdict allows military trial of civilians held in connection with May 9 riots; Justice Hilali differs with majority decision.
In a pivotal decision that aims to bring stability and legal clarity to the aftermath of the May 9 riots, the Supreme Court of Pakistan, in a 5-1 majority ruling, has temporarily suspended its earlier order nullifying civilians’ trials in military courts. The verdict was initially announced on October 23, when Justice Ijazul Ahsan-led bench declared the trials null and void.
The suspension comes in response to intra-court appeals filed by the federal and provincial governments, along with the defense ministry, challenging the October decision. A six-member bench, headed by Justice Sardar Tariq Masood, heard the appeals and, with a majority vote, decided to stay the previous order until the final verdict on the appeals is announced.
Justice Musarrat Hilali, while differing with the majority, emphasized that the trials of civilians in military courts would be conditioned upon the Supreme Court’s final decision on the intra-court appeals. This nuanced approach reflects a commitment to a fair and thorough examination of the legal intricacies surrounding the May 9 riots.
The initial October 23 verdict, which nullified the government’s decision to try civilians in military courts, was prompted by a series of events following the arrest of Pakistan Tehreek-e-Insaf (PTI)-then chairman Imran Khan. Four out of five judges declared certain sections of the Army Act as unconstitutional, emphasizing the importance of trials in civilian criminal courts.
In response to the Supreme Court’s October decision, the federal and provincial governments, along with the defense ministry, filed intra-court appeals seeking a review of the ruling. The caretaker government of Sindh, however, chose not to file any plea against the Supreme Court order.
During the recent hearing, Khawaja Haris, counsel for the defense ministry, requested the top court to stay the military court verdict until the final decision on the intra-court appeals. The court, in its wisdom, decided to temporarily suspend the previous order, ensuring that the trials of civilians in military courts remain contingent on the final verdict.
This measured and careful approach by the Supreme Court underscores its commitment to upholding the rule of law and ensuring a just resolution to the legal complexities arising from the May 9 riots. As the legal proceedings continue, this decision provides a foundation for a thorough examination of the issues at hand and reaffirms the judiciary’s dedication to fairness and justice.
The hearing
At the outset of the hearing, Justice Masood refused to recuse himself from the six-member bench after objections were raised on his inclusion.
On Monday, the top court was moved against the inclusion of Justice Masood’s inclusion in the bench slated to hear the intra-court appeals against the top court’s October 23 verdict.
Former chief justice of Pakistan Jawwad S Khawaja, in his petition filed on Monday, contended that Justice Masood had already expressed his views on the said matter via his written note and so must recuse himself from the bench from hearing the pleas filed against the SC verdict.
“Did anyone issue a notice to you?” asked Justice Masood from the counsels of the parties.
At this, lawyer Ahsan said arguments were held before issuing notice if there was an objection from judges.
Attorney General Mansoor Usman Awan said the objection of the parties’ was baseless.
He said that the case should be heard on merit first and objections can be raised after the notice.
At this, Lawyer Salman Akram Raja said the case would be affected by objecting to the notice.
Later, Justice Masood said: “I will not recuse myself from the bench.”
Lawyer Sardar Latif Khosa then objected to Justice Masood saying “How can you hear the case with our objections?”
AGP Awan then questioned how can the court consider the objections when the notices had not been issued on the ICAs yet. “The one who objected is himself not present in the court,” he added.
During the hearing, lawyer Faisal Siddiqui — the counsel in pleas filed by civil society members — asked how the federal government appoint private lawyers.
To this, AGP Awan replied that all legal requirements for the services had been fulfilled and urged the court to first hear the petitioners who had filed the intra-court appeals.
Following this, Balochistan Shuhada Forum’s lawyer started his arguments.
Justice Mazhar told the lawyer that he would have to amend the appeal after a detailed order was issued.
Defence ministry counsel Khawaja Haris then said that the Army Act’s Section 2(1) was amended in 1967 which allowed military trials of the civilians.
He argued that through this Act, those who attacked and looted military installations are being tried in the military courts. “The court invalidated the provisions of the Army Act by a majority of 4-1,” he added.
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Citing the previous case of retired Brig FB Ali, Haris said that these provisions were upheld in this case, adding that the judgment was declared as correct when hearing a case on the 21st Amendment.
Haris said that those civilians who are a threat to national security will be tried in the military court.
Justice Saadat remarked that it would be appropriate to wait for the detailed verdict.
At this, Haris said that the October 23 court order should be suspended if they have to wait for the detailed verdict.
“About 104 people have been in army’s custody for the last seven months. It would be appropriate for the accused to complete their trial,” said Haris.
The court asked whether the trials were completed. To which the AGP said that some of them were indicted and some are pending, adding that some of the accused may be acquitted.
AGP Awan said that those who are indicted will not face a sentence of more than three years.
“How do you know that the sentence will be less than three years?” asked Justice Mazhar.
In the case of minimum sentence, the incarceration period will also be part of the punishment awarded to any accused, the AGP said.
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