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‘Null and void’
IT is a seminal judgement. On Monday, while hearing a set of petitions against the trial of civilians in military courts, a Supreme Court bench ruled that in the aftermath of the May 9 events, civilian trials in such courts were null and void.
Their lordships observed that two sections of the Army Act apparently justifying civilian trials in military courts were unconstitutional, and called for cases of civilians to be conducted in regular criminal courts.
The judgement clearly upholds civilian supremacy and should be seen as permanent endorsement of the constitutional order over non-democratic shortcuts.
In ignoring the recent pleas of some of the accused to speed up their military trials, it becomes apparent that their lordships were looking at the long-term consequences of allowing civilians to be tried by military courts.
The petitions against military trials were taken up by former CJP Umar Ata Bandial, but the case was put off ‘indefinitely’ before resuming Monday. There were also reports that the military trials of some among the 102 people taken into custody after the May 9 developments had begun, even though the apex court had said the cases could only be heard after it granted permission.
The last National Assembly, for all its talk of democracy, had endorsed military trials through a controversial resolution, that has, in effect, been rejected by the court in its decision to restore the civilian order.
The state can appeal the decision before the full court. Yet at the heart of the matter is not just the trials of 102 individuals by the military, but also the debate about what sort of governance structure should dominate Pakistan.
Should it be the constitutional order envisioned by the founders of the country, where every citizen is equal under the law, where due process is respected, and where all institutions act within their legal bounds? Or should Pakistan’s vision be one of an eternal security state, where justice, lawmaking, foreign policy, the economy, etc, are all militarised?
Thankfully, in the latest judgement, the apex court has demonstrated the vision of the founding fathers. As a start, the custody of the May 9 accused should be handed over to civilian authorities.
To demand the civilian trial of those involved in the May 9 events is not to condone their acts; it is to say that when civilians are accused of committing crimes, there exists a civilian justice system that should be well-equipped to decide on their guilt and punishment.
And if there are lacunae in the civilian justice system, these need to be addressed, not replaced with militarised justice. It is hoped that Monday’s judgement is applied for all times to come, and not just to the May 9 cases.
Published in Dawn, October 24th, 2023
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