In a landmark move fraught with legal and political implications, the Supreme Court (SC) has conditionally greenlit military courts to announce verdicts for 85 civilians who were still in custody for their alleged involvement in last year’s May 9 riots.

The development came as a seven-judge bench resumed hearing a case pertaining to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots.

Announcing the directives on Friday, Justice Aminuddin Khan, who is heading the constitutional bench, said: “Suspects who can be accorded concessions in their sentences, should be given so and released.

“Suspects who cannot be released should be moved to jails once their sentence has been pronounced,” he ordered.

The contentious decision has sparked a debate among legal circles, raising concerns about whether it marks a retreat from last year’s widely praised ruling that military trials for civilians violated the Constitution.

To unpack the ramifications for the accused and Pakistan’s constitutional framework alike, we sought insights from lawyers.

‘Order dilutes the issue without deciding it’

According to lawyer Abdul Moiz Jaferii, “the failure of the SC to decide this appeal against the legality of the military court trials of civilians in a timely fashion has drawn critique from both — those that support the underlying judgment as well as those who are against it.”

Jaferii argued that the delay has compounded an already complex matter for the constitutional bench. “The government has repeatedly made clear that the stay order against the judgment given by the bench when it was headed by Justice Tariq Masood has become an impediment in the release of people, who even where [SIC] found guilty, would have served their punishment periods already,” he explained.

In his opinion, what has happened is “that the Supreme Court is trying to correct for that delay by allowing these trials to culminate.”

However, he described the court’s decision as an inadequate fix. “This particular order today dilutes the issue without deciding it; and lends force to the establishment narrative of the guilt of these individuals and the competence of their trials until it is effectively reversed.” For Jaferii, a simpler, fairer approach would have been to release these civilians on bail while deliberations on the legality of their trials continued.

A ‘disastrous’ amendment

Barrister Asad Rahim Khan framed the verdict as a grim milestone for Pakistan’s judiciary. “The 26th amendment has achieved its purpose. The post-restoration judiciary is now a thing of the past,” he remarked.

“In passing this order, the judges join the ranks of the bureaucracy, the parliament, the press, and the executive, all united in a straight line,” he stated, highlighting the broader institutional alignment the decision reflects.

“This bench also wins the unique distinction of allowing military trials during peacetime. Court-martials of average citizens were usually associated with martial law (Umar vs Crown), emergency rule (FB Ali vs Federation), or specific amendments during insurgency (District Bar Association, Rawalpindi vs Federation). What the ‘constitutional bench’ actually thinks about the Constitution it’s meant to protect is clear from this order,” he commented.

For him, the path forward is unequivocal: “There can be no way back from our current crisis until the challenge to this disastrous amendment is heard.”

‘Sad consequence of the infamous 26th Amendment’

In a similar vein, lawyer Basil Nabi Malik expressed grave concerns over the SC’s decision, pointing out its departure from earlier rulings. “The SC had earlier pronounced that the trial of civilians in military courts was unconstitutional. By allowing military courts to announce verdicts in cases heard by them, without the SC even deciding the appeals in question, it has given rise to a strong impression that is just another sad consequence of the enactment of the infamous 26th Amendment,” he lamented.

Malik emphasised the constitutional stakes at hand: “The fact of the matter is that the apex court had already held such trials to be unconstitutional, and before allowing military courts to adjudicate upon the liberties of any civilian, the legality or otherwise of such a decision should have been conclusively determined by the SC in the appeals before it.”

“It is important to note that the matters have been pending for some time, and it is remarkable that even at this late stage, the SC’s constitutional benches are relying on interim measures for the sake of expediency as opposed to actually deciding the matter before them and delivering justice and liberty,” he said, criticising the delays in resolving the matter.

‘Integrity of judicial decisions’ under question

Lawyer Mirza Moiz Baig, too, voiced alarm over the apex court’s decision to permit military courts to pronounce verdicts conditionally, linking it to deeper concerns about judicial independence. “Allowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the independence of the judiciary after the 26th Constitutional Amendment,” he stated.

He underscored the contradictions between last year’s ruling and today’s decision, stating that “given that the trial of civilians by military courts was declared unconstitutional by a five-member bench unanimously, allowing such courts to pronounce verdicts against civilians even before the constitutional bench finally decides the appeal on merits raises concerns about the integrity of judicial decisions while also jeopardising civilians’ right to fair trial and due process.”

A legal loophole

Justice (retd) Shaiq Usmani, speaking to DawnNewsTV, addressed the implications of the SC’s ruling, noting that while military court orders are appealable in the high court, this development marks a significant shift. “Until now it was being said that military courts have no right to carry out civilian trials,” he remarked.

Describing the impact on political dynamics, he added, “this is a significant development and it is a setback for the PTI.”

“In my personal opinion, according to the Constitution, a civilian cannot be tried under the military court given you are not functioning under the military law.” However, he acknowledged a legal provision in the Pakistan Army Act which says that “if anyone does something which damages the military installation, under that condition, the military court can carry out their (civilian) trial.”

‘Erosion of constitutional guarantees’

Lawyer Yasser Hamdani reflected on the complexity of the situation, stating that “the events of May 9 2023 were extraordinary — there is no question about it. However, the question of whether military courts can fairly dispense justice to individuals under the Army Act and in line with the constitutional guarantee of fair trial is a contentious matter.”

He expressed his ambivalence about the current development, saying, “I’m unsure how to react to this news because, on one hand, one wants those responsible for May 9 to be held accountable. However, the erosion of constitutional guarantees in the process is somewhat problematic. I’m not convinced that a civilian should be tried under the Army Act,” he concluded.