Military Trials of Civilians Deemed Lawful – October 23, 2023 Verdict Overturned by Supreme Court
Islamabad (Web News)
The 5-2 ruling came as the CB accepted a set of 38 intra-court appeals (ICAs) moved by the federal and provincial governments as well as Shuhada Forum Balochistan, among others, against the widely-praised October 2023 ruling that declared that trying the accused civilians in military courts violated the Constitution.
The bench — led by Justice Aminuddin Khan and also including Justices Jamal Khan Mandokhail, Naeem Akhtar Afghan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan — had been reviewing whether the trial of civilians in military courts was Constitutional or not.
A seven-member constitutional bench of the Supreme Court of Pakistan has overturned the October 23, 2023 verdict by a five-member bench that had declared the military trials of civilians unconstitutional. The new verdict was passed with a 5-2 majority.
The constitutional bench restored Sections 2(d)(i), 2(d)(ii), and 59(4) of the Pakistan Army Act, effectively reinstating the law in its original form. The Supreme Court accepted 38 intra-court appeals filed by the Ministry of Defence and other parties challenging the earlier decision.
The justices in favor of restoring military trials included Chief Justice Aminuddin Khan (head of the bench), Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Shahid Bilal Hassan. The dissenting judges were Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan.
The brief ruling was announced in open court on Wednesday, with a detailed judgment to be issued later. The bench referred the matter of granting the right of appeal against military court verdicts to the government, directing that legislation be introduced within 45 days. Amendments to the Army Act should be made to allow appeals in High Courts.
According to the Attorney General, 39 military installations were attacked on May 9. The Supreme Court has reinstated previously annulled sections of both the Army Act and the Official Secrets Act.
Justice Naeem Akhtar Afghan, in his dissenting note, emphasized that the Army Act is intended for armed forces personnel only. He referenced Article 175 of the Constitution, which clearly separates the judiciary from the executive. He also stressed that both the Constitution and Islam guarantee the right to a fair trial and access to information, citing Articles 10-A and 25. He declared that the military trials of May 9 suspects should be nullified and that all such cases should be tried in civilian courts, with detainees to be treated as under-trial prisoners.
It is worth noting that the seven-member constitutional bench, headed by Justice Aminuddin Khan, heard the case over approximately five months across 56 sessions before reserving judgment on Monday, May 5.