• Constitutional bench links judgements to outcome of intra-court appeals
• Pronouncement of reserved rulings allowed in cases of 85 detained civilians
• Order says ‘admissible’ remissions be granted, other convicts be sent to jail to serve sentences
• Right to challenge military trial decisions in high courts to stay suspended until SC decision

ISLAMABAD: A seven-member constitutional bench of the Supreme Court on Friday allowed military courts to pronounce judgements in the cases of 85 civilians who are in military custody for their alleged role in the May 9 riots, which broke out following the arrest of PTI founder and ex-premier Imran Khan in 2023.

However, the bench ordered that the announcement of judgements would be subject to a final determination of appeals, and without prejudice to the rights of those 85 accused persons.

The decision by Justice Amin­uddin Khan-led constitutional bench came during the hearing of Intra-Court Appeals (ICAs) against the order of a five-judge SC bench that had nullified the trial of civilians by military courts on Oct 23, 2023. Justice Jamal Khan Mando­khail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan, Justice Musarrat Hilali, and Justice Shahid Bilal Hassan were also part of the constitutional bench.

On Dec 13, 2023, the five-judge SC bench by a majority of five to one had suspended the operation of its Oct 23 judgement that had nullified the trial of civilians involved in the May 9 violence and issued a direction that military courts could commence trials, but they would not convict or acquit any suspect until the government-instituted intra-court appeals (ICAs) were disposed of. The apex court on March 28, 2024, modified its Dec 13 injunction by allowing military authorities to release 15 to 20 people, accused of being involved in the May 9 violence.

In its Dec 13, 2024, order, the seven-member bench stated: “Counsel for the parties pray and agree that the injunctive order granted on Dec 13, 2023 be modified on the analogy for the order dated March 28, 2024 so that the 85 persons’ cases be decided who are under the custody of military courts and whose final judgement was stayed vide order dated Dec 13, 2023.”

The constitutional bench modified the order “to the extent that the final judgement of 85 persons who are under the custody and facing trials before the military courts, be announced and the remissions admissible to the said persons be granted and persons who have to yet undergo the sentence awarded to them, their custody be handed over to the concerned jail authorities.”

Additional Attorney General Amir Rehman assured the court that the prisoners would be dealt in accordance with the jail manual. However, the bench did not agree when the counsel for the petitioners requested the SC that the prisoners be placed under the custody of a civilian court.

According to the verdict, the pronouncement of judgement by military courts would be subject to final determination of these appeals and without prejudice to the rights of the said 85 accused persons.

In contrast with Friday’s order, the bench on Monday had rejected a government request to allow military courts to pronounce verdicts in completed trials, with Justice Hilali noting it would imply the court’s acceptance of the military courts’ jurisdiction to try civilians.

At the same hearing, the bench had questioned the rationale behind handing over May 9 cases to military courts, asking whether anti-terrorism courts had issued speaking orders explaining their reasons before doing so.

At Thursday’s hearing, questions about the legitimacy of civilians’ military trials in light of Article 8 were the highlight, with Justice Mandokhail asking how the Pakistan Army Act (PAA) 1952 could be applied to someone who was not part of the army.

Right to appeal suspended

Justice Aminuddin then on Friday noted that the constitutional bench was only hearing the military trials case and adjourned all other cases. While issuing interim order, he said the right to challenge the military courts’ decisions in high courts would remain suspended till the case in the apex court was decided upon.

“The appeal period in the high courts will begin after the final decision [by the SC],” the bench head observed.

At the outset of the hearing, echoing his remarks from Thursday proceedings, Justice Mandokhail sought arguments on whether the PAA sections struck down by the court earlier were in line with the Constitution. “Can the Army Act be amended to bring every person under its jurisdiction?” he asked.

When Justice Mazhar sought the reasons for striking down the PAA sections, Justice Mandokhail remarked, “This aspect should also be kept in mind that the Army Act was formulated before the 1973 Constitution.”

When the defence ministry lawyer contended there were “errors” in the apex court’s original verdict, Justice Mandokhil took exception: “Do not dishonour a court decision to this extent by calling it erroneous.” The counsel apologised, saying his words were “not of a legal nature”.

Details of May 9 incidents

Justice Mazhar then recalled that the bench had sought details of the May 9 incidents. “Currently, we only have the Corps Commander House matter before us. Let us know if the case is to be limited only till the Corps Commander House [attack],” he said.

AAG Rehman responded that “all details were received earlier this morning”, adding that he would submit them formally in the form of a miscellaneous application.

Justice Hilali wondered what would happen to the trials held under the PAA sections declared unconstitutional by the SC previously. “Someone must have been sentenced under them before May 9 [incident],” she added.

Haris replied that usually, verdicts issued before the relevant sections were struck down had protection, at which the judge remarked that it would be akin to “prejudice against those suspects”.

At this point, Justice Mandokhail said, “No one joins the army by force, but of their will. Those joining the army know that the Army Act would be applicable to them. Under the Army Act, one does not have their fundamental rights. The Army Act was constituted for the rules and discipline of employment in the army.”

The defence ministry lawyer stated, “No one joins the army with the intention of crime. The fundamental rights are revoked upon committing a crime.”

Justice Mandokhail then asked whether the court would be limited to the appellant’s request when hearing an appeal. “Can the court also review other aspects of the decision?”

Justice Aminuddin observed, “Respondents could be limited to their objections but not the court”, to which Justice Mandokhail said he wanted to be satisfied since it was a serious matter. The defence ministry lawyer argued if Article 83A “did not provide fundamental rights, then it could not be challenged in a military court”.

“The matter under consideration here is not of fundamental rights but of civilians and non-civilians,” Justice Hilali intervened. Justice Mandokhail asked whether the counsel did not trust civilian courts while Justice Aminuddin asked him how much more time he needed for his arguments.

Khawaja Haris replied he would require “some more time” for his arguments, at which Justice Aminuddin said the hearing was being adjourned until the winter break was over. “It is hoped that the case of military trials will conclude in January. Once this case is decided, we will fix for hearing the petitions against the 26th amendment for January’s second week,” the judge added.

“We have a lot of cases in the pipeline, including those on the 26th amendment.”

Subsequently, the bench allowed military courts to announce the reserved verdicts on the condition that they would be subject to the apex court’s final decision on the ICAs. The hearing was adjourned until the first week of January.

Published in Dawn, December 14th, 2024