Military courts case

Military Courts case
Court	Supreme Court of Pakistan
Full case name	Aitzaz Ahsan v. Federation of Pakistan Jawwad S. Khawaja v. Federation of Pakistan Karamat Ali and others v. Federation of Pakistan Zaman Khan Vardag v. Federation of Pakistan Junaid Razzaq v. Federation of Pakistan Imran Ahmed Khan Niazi v. Federation of Pakistan [1]
Decided	October 23, 2023; 2 months ago (2023-10-23)
Citation(s)	2023 SCMR 1732
Case history
Subsequent action(s)	Ruling challenged by caretaker governments of Punjab, Khyber Pakhtunkhwa, Baluchistan, as well as the federal caretaker government, along with the ministry of defense in intra-court appeals. A new bench suspends the original verdict by a majority of 5-1.
Court membership
Judges sitting	Justices Ijaz-ul-Ahsan Munib Akhtar Yahya Afridi Mazahar Ali Akbar Naqvi Ayesha A. Malik
Case opinions
Majority	Ijazul Ahsan, joined by a unanimous bench

The Military courts case is a case being heard by the Supreme Court of Pakistan (SCP) which considers the question of whether the trial of civilians under Pakistani military courts is unconstitutional. The Court has clubbed 6 different constitutional petitions regarding the matter into a single case that is being heard by 6-member larger bench of the court.^[1] The origin of the petitions lies in the initiation of military trial of 102 defendants of May 9 riots, whose cases were transferred to the military courts from civilian ones at the Army's behest.^[2]

Background

Military Courts were set up in Pakistan in the aftermath of the 2014 Peshawar school massacre to dispense speedy justice to terrorists. The move was enabled by the passage of the 21st Constitutional Amendment in 2015 with a sunset clause of 2 years.^[3] In January 2017, at the end of the originally stipulated period, a further amendment was made to the constitution to allow the military courts to function for two more years. That provision of the amendment expired in January 2019 and hasn't since been renewed.^[4] In these courts, trials are conducted under the Judge Advocate General (JAG) branch of the Pakistan Army in which the judges and prosecutors are all serving military officers with no formal legal training.^[5] Furthermore, the opaqueness of the military justice system have been criticized, including by the United Nations and International Commission of Jurists.^[6][7] The proceedings are conducted within military establishments in secrecy and defendants only have the right to appeal the verdict of a military court to a military appellate tribunal, whose decision is turn is deemed final and cannot even be challenged in the higher civil courts of Pakistan.^[8]

The establishment of these military courts was first challenged in District Bar Association (Rawalpindi) v Federation of Pakistan, also referred to as the Amendments case, in May 2015. However, with a majority of 11 to 06 the Constitution Petitions challenging the Twenty-first Amendment and the Pakistan Army (Amendment) Act (2015) were dismissed. This allowed for the initial continuation of the military courts.^[9]

After Imran Khan's arrest on 9 May 2023 from within Islamabad High Court, protests spread across the country.^[10] In some instances protestors targeted military installations, including the General Headquarters (GHQ) in Rawalpindi and Corp Commander house at Lahore.^[11] Several thousand Pakistan Tehreek-e-Insaf leaders and workers were arrested in response, of which 102 defendants had their cases shifted from anti-terrorism courts to military courts.^[12] This move was subsequently challenged by several petitioners as unconstitutional and forms the basis of this case.^[13]

Bench Composition

Chief Justice Umar Ata Bandial initially formed a 9-member larger bench to hear the case.^[14] However, upon the onset of proceedings on 23 June 2022, Justice Qazi Faez Isa "rose" from the bench and stated that he did not "consider the 9-member bench a bench" and left the hearing. He was of the view that the Chief Justice should first decide the matter of Supreme Court Practice and Procedure Bill, 2023 before constituting new benches. He was supported by fellow sitting judge, Tariq Masood, in exiting from the courtroom.^[15][16]

On 26 June 2023, Justice Mansoor Ali Shah recused himself from the bench after the Federal Government, represented by Attorney General, Mansoor Awan, raised objection over him being related to one of the petitioners, former Chief Justice of Pakistan, Jawwad S. Khawaja.^[17]

The final bench consisted of 6 judges; Chief Justice Umar Ata Bandial, and Justices Ijaz-ul-Ahsan, Munib Akhtar, Yahya Afridi, Mazahar Ali Akbar Naqvi, and Ayesha A. Malik.^[1] J. Bandial retired on 17 September 2023 while the hearing of the case was ongoing.^[18]

Verdict

On 23 October 2023, the bench announced a unanimous verdict that called for the trial of May 9 riots suspects to be conducted in ordinary courts. The court further declared Section 2(1)(d) of the Army Act, which elaborates on persons subject to the Act, to be in violation of the Constitution and “of no legal effect”. The court also declared Section 59(4) (civil offences) of the Act to be unconstitutional.^[19] These sections are reproduced below:^[20]

• Section 2(1)(d): “persons not otherwise subject to this Act who are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government, or having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan” can be tried under the secrets act.
• Section 59(4): “Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly.”

Reactions

The verdict was widely hailed by lawyers, civil rights activists, and legal experts. Human Rights Commission of Pakistan (HRCP) warmly welcomed the decision, saying in a tweet: “Military courts do not meet the standards of fair trial, nor are such trials likely to be impartial or independent, as the administration of justice warrants.” Pakistan Tehreek-i-Insaf (PTI) spokesperson Raoof Hassan hailed the judgement saying the order will help transfer cases of their workers from the military courts to the ordinary criminal courts.^[21]

On 14 November 2023, Senator Dilawar Khan with the support of the pro-establishment, Balochistan Awami Party, passed a resolution against the verdict. The resolution was not part of the daily agenda and was tabled when most of the senate's members were absent from the floor.^[22] In the ensuing sessions, on 18 and 22 November, senators protested the hasty passage of the resolution. Senator Mushtaq Ahmad termed it a "drone attack" on the Senate. Senator Raza Rabbani decried the way the resolution was "bulldozed" through the senate with only 12 of the 100 senators present when it was tabled.^[23] Chairman of Senate, Sadiq Sanjrani, prevented the tabling of a resolution in support of the verdict, stating that the matter has now become subjudice.^[24]

On 18 November 2023, the caretaker government, under Anwarul Haq Kakar, filed an intra-court petition against the verdict.^[25] Related appeals were filed by caretaker governments of Khyber Pakhtunkhwa and Baluchistan as well as the defense ministry, under Lieutenant General (r) Anwar Ali Hyder.^[26][27] On 22 November 2023, the caretaker government of Punjab, under Mohsin Naqvi, also challenged the verdict.^[28]

Suspension of Verdict

In response to the intra-court appeals filed against, the new Chief Justice, Qazi Faez Isa, fixed a 6-member bench on 12 December 2023. The bench consisted of Justices Sardar Tariq Masood, Aminuddin Khan, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Musarrat Hilali, and Irfan Saadat Khan. The composition of the bench drew criticism from Justice Ijazul Ahsan who was part of the 3-member committee to fix benches, stating that he was bypassed by J. Isa in violation of section 2 of the Supreme Court Practices and Procedure Act, 2023.^[29] Former Chief Justice, Jawwad S. Khawaja, a petitioner in the case, objected to the inclusion of J. Tariq Masood as head of the new bench, stating that he had earlier recused himself from the bench hearing the original petition.^[30]

On 13 December 2023, the bench suspended the earlier ruling in a 5–1 majority decision, with J. Musarrat Hilali dissenting, stating that the trials of 103 civilians will continue in military courts. Meanwhile, stating that military courts would not issue a final verdict against the suspects.^[31]

See also

• May 9 riots

References

This page was last edited on 22 January 2024, at 16:45