Ruling hailed though some find it hasty, deviating from precedent

LAHORE: The Supreme Court verdict in the matter of trials of civilians in military courts is being seen as a ‘hope’ for rule of law and constitutional rights by many if not most lawyers and legal analysts. There are reservations though among others regarding what they see as a rushed-up judgment that does not adhere to past precedent and seems to be less interpretation and more law-making by the court.

Speaking to host Aleena Farooq Sheikh on Geo’s Report Card, lawyer Reema Omer called it a “very good judgment”, adding that “had this been limited to the May 9-10 events it would have been a weak judgment but because overall Section 2(1)(d)(i) and Section 2(1)(d)(ii) -- which gave the jurisdiction of the Army Act and brought civilians into it -- have been done away [and] that is a very good step. Now we are moving towards normalcy and democratic [values] where no matter the crime your trial will be in regular criminal courts. Those need to be strengthened.”

On the same show, Supreme Court Advocate Hafiz Ahsaan Ahmed Khokhar had a different opinion on the verdict, saying that 36 countries around the world have the provision of military trials of civilians. He gave an historical timeline of the Army Act and how it was amended in 1967 to add provisions making civilians part of the jurisdiction. Khokhar said that “In 1968, a verdict of the Lahore High Court validated these amendments. The matter then went to the Supreme Court. By then the 1973 constitution had also come into play. Article 8 says laws inconsistent with or in derogation of fundamental rights to be void, but an exception in it says that under these three laws and land reform laws cant be invalidated under Article 8. The matter went to the Supreme Court which said the amendments were valid and did not violate fundamental rights either.”

According to Khokhar, the Zaheer Abbasi case validated these same amendments, as did a case in 2007 as well as the 21st Amendment cases post the APS attack. For Khokhar, the question was how a “jurisprudence set down by the Supreme Court over years can be set aside by a five-member bench? How can amendments that have been validated again and again over the years be invalidated now in 2023? This is a self-contradictory verdict.”

Not too many are in agreement with this view. In his response regarding the judgment, high court advocate and former faculty at LUMS Hassan Abdullah Niazi tells The News that “at a time when civilian supremacy in Pakistan is once again facing severe threats, the Supreme Court has demonstrated that there may still be some hope for rule of law and constitutional rights. We will have to wait for the detailed verdict before we can comment fully on the impact of this decision on our jurisprudence, but by striking down the expansively worded Section 2(1)(d) and Section 59(4) of the Army Act, the court has taken any future arguments for the trial of civilians by military courts off the table. Given how clearly unconstitutional such trials are, some may question us celebrating a verdict that does the bare minimum. However, given our history of court validated military rule, we should celebrate progress whenever we get it.”

Supreme Court advocate Basil Nabi Malik also provides a context to why the legal realm is welcoming the verdict: “Allowing the military to try civilians, especially in light of the historically unequal power structures prevalent in the country vis-a-vis civ-mil relations, would have further cemented the sentiment that the true rulers of the country are not the people, but those trying them. It is a feather in the Supreme Court’s cap that it was able to reset such regressive steps that would have had far-reaching and devastating effects on an already battered and bruised democratic project.”

Speaking to Geo News right after the verdict was announced, former president of the SCBA Ahsan Bhoon had said that the verdict was “in accordance with the constitution”. Bhoon also said that per his estimations the “decision will be upheld even if it is appealed” since even past decisions contrary to Monday’s verdict were not well received. “The legal fraternity does not think highly of those decisions....We welcome this judgment, this is a good judgment.”

In his comments to Geo, Advocate Raja Khalid presented a different view though, giving a reminder of how “the 1952 Army Act was amended in 1967 and Section 2(1)(d) was added [according to which] if a civilian commits an offence such as attacking military installations, then they can be tried by military courts.”

Khalid also stated that “civilians were tried in military courts even during PTI Chairman Imran Khan’s tenure. People who attacked Pervez Musharraf were also tried in military courts and their sentences were also duly carried out.” For Khalid, the job of the courts is to “interpret the law and not make it.” To him, “with today’s verdict, the apex court made a law.”

What happens now after this verdict? There could be an appeal, Niazi says, “given that the Supreme Court Practice and Procedure Act is now in the field and this case was decided under Article 184(3) of the constitution. An appeal has to be filed within 30 days of this order and is to be heard by a larger bench of the court.”

And who exactly does the verdict apply on? Malik says that “The verdict in question certainly applies to all trials that are pending and arising from and out of 9th and 10th May, 2023 (in pursuance of the impugned sections of the Pakistan Army Act), and also would appear to apply to any action or proceeding of any other persons similarly placed or tried in pursuance of the said provisions. As to those trials that may have already concluded, such aspects may very well be tackled in the detailed reasons. Possibly, this judgment may be attracted to those trials which have concluded but have not yet attained finality, whereas the rest may be subject to the past and closed transactions doctrine.”

Niazi agrees that the detailed verdict should be able to provide more clarity. He says that “based on the short order the judgment applies to not just the 103 individuals accused of crimes connected with May 9, but also any pending proceedings under the provisions of the Army Act that have been declared unconstitutional. Additionally, the court also declares illegal any proceedings under the Army Act in ‘respect of the aforesaid persons or any other persons so similarly placed’. This implies, as per my reading, that any other civilian convicted by a military court and who has an appeal available would also benefit from the verdict.”