• Bench hearing appeals allows proceedings against May 9 suspects to continue
• Courts barred from convicting, acquitting suspects until apex court’s final decision
• Justice Musarrat dissents; Justice Masood rejects pleas seeking his recusal

ISLAMABAD: The Supreme Court, in a 5-1 majority decision, suspended on Wednesday the operation of its Oct 23 short order that had declared ‘unconstitutional’ the military trial of 103 civilians for their alleged involvement in May 9 violence.

Now, the trials of such individuals can proceed, but military courts are bound not to convict or acquit the suspects as long as the government-instituted intra-court appeals (ICAs) are being heard by the apex court.

The six-member SC bench will resume further hearing in the third week of January.

Justice Sardar Tariq Masood, who heads the bench, announced the suspension of the Oct 23 order after a short break following the end of proceedings.

Other members of the bench are Justice Amin-ud-Din Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Irfan Saadat Khan. Justice Hilali, however, dissented from the majority view.

The ICAs were filed by the federal government, the ministries of defence and interior, and the governments of Punjab, Khyber Pakhtunkhwa and Balochistan. They had also sought suspension of the operation of Oct 23 short order during the pendency of appeals.

The top court was perturbed on what to decide when detailed reasons of the Oct 23 short order, announced by a five-judge bench, have not been released as yet.

Short order

On Oct 23, the SC bench headed by Justice Ijaz-ul-Ahsan declared the trial of 103 civilians against the Constitution with a direction to transfer the custody of the suspects to the criminal courts. One member of the bench, Justice Yahya Afridi, had reserved his opinion on the majority ruling that also struck down Sections 2(1)d(i) and (ii) as well as 59(4) of the Pakistan Army Act (PAA), 1952.

Sections 2(1)(d)(i) and (ii) explain that civilians become subject to the army act if they are accused of seducing army officers from their duty or allegiance to the government and therefore could be tried under the PAA.

At the outset of proceedings on Wednesday, Justice Masood turned down a plea moved by former chief justice Jawwad S. Khawaja seeking recusal of the presiding judge.

Justice Masood recalled that the petitioner judge himself had authored a 2014 verdict, which says it was the conscience that de­t­e­rmines whether a judge should hear a case and that courts and judges never succumb to scurrilous and defamatory remarks made against them.

Ex-CJP Khawaja, one of the petitioners challenging military trials of civilians, had asked that Justice Masood should not sit on the bench and refer the matter back to the three-judge committee for reconstitution of the bench to hear these appeals.

Justice Masood also referred to the gruesome Dera Ismail Khan attack in which several soldiers were martyred and wondered should the civilians involved in such acts of terror not be tried under the PAA.

Terror in other states

Advocate Salman Akram Raja highlighted that terrorism was not unique to Pakistan and existed in other parts of the world as well. He said other countries had developed instruments to deal with such incidents, adding that in those countries, military trials were not conducted by colonels or majors.

Instead of suspending the short order, the court should fix the matter for sometime in January, he requested.

Advocate Sardar Latif Khosa contended that those who carried out the attacks were armed terrorists, whereas Barrister Aitzaz Ahsan recalled that the late chief justice of the Peshawar High Court, Justice Waqar Seth, had overruled the conviction of around 253 people accused of terrorism since a copy paste confessional statement was used to sentence them all.

Attorney General for Pakistan (AGP) Mansoor Usman Awan argued that had the military trials proceeded, many suspects may have been acquitted or released by now after completing their sentence, benefiting from Section 382 of CrPC and remissions.

He contended that there were people who were not ordinary people, rather hardened criminals, and that’s why the 21st Constitutional Amendment had to be introduced to try terrorists in military courts since judges conducting such trials were being threatened and witnesses targeted.

“How you can equate the terrorists with those arrested in the May 9 events?,” wondered Justice Hilali.

The AGP contended that the government was not equating them with terrorists and that’s why these individuals have not yet been charged since “we believe these individuals were extremely misguided”.

Advocate Faisal Siddiqui suggested the court could grant an interlocutory relief by suspending that part of the Oct 23 short order which deals with Section 2(1)(d)(i) of PAA.

Justice Hilali again wondered how the court could suspend a short order.

PTI reaction

In its reaction, the PTI termed the larger bench’s decision a “judicial coup” and a severe violation of basic human rights.

“No civilised society tolerates trials of civilians in military courts. Even our Constitution does not have any room for the trial of civilians in the military courts,” a PTI spokesman said.

He warned that the decision will have adverse eff­ects on the Constitution of the country.

“PTI has always disagreed and criticised the trial of civilians in military courts and will use all possible legal and political options to stop it,” he said.

Ikram Junaidi also contributed to this report

Published in Dawn, December 14th, 2023