ISLAMABAD, Pakistan: The Supreme Court of Pakistan on Monday declared the Trial of Civilians in Military Courts unconstitutional and the Federation of Pakistan has decided to submit an appeal against the Supreme Court’s decision over Civilian Trials in Military Courts as unconstitutional.
In an expected decision from judges popularly known as “like-minded” judges of former CJP Bandial who had been given blanket bails and reliefs to former PM Imran Khan, the five-member bench headed by Justice Ijazul Ahsan announced the verdict reserved earlier in the day. The verdict was announced with a majority of 4-1. Justice Yahya Afridi dissented from the decision.
The bench included Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and, Justice Mazahar Ali Akbar Naqvi. The verdict was announced with a majority of 4-1. Justice Yahya Afridi dissented from the decision.
The Apex Court ruled that Section 2(D)(1) of the Official Secrets Act unconstitutional was unconstitutional. It maintained that the Trial of Civilians can’t be held in Military Courts. The Court directed that all Cases related to the May 9 incidents be forwarded to Civilian Courts.
It may be mentioned that senior politicians and lawyers Aitzaz Ahsan and Latif Khosa filed a petition in the Supreme Court some time ago that military courts can only conduct trials against army personnel.
During the trial, the Federation of Pakistan pleaded in the court that the main purpose of this petition was to protect the criminals who were caught red-handed in the May 9 riots from the torture of military law, because if the Army Act does not apply, then it will be easy for the criminals of PTI due to suspicions of criminal procedure. The Federation was of the view that thousands of civilians had been disposed of under military law under the Pakistan Army Act 1952 and 1967- The Supreme Court of Pakistan has given several decisions in the light of these laws. One of the reasons behind trying civilians in military court is that Pakistan’s criminal law is the weakest in the world and people can easily be given relief at will.
This is important to mention here not only the Supreme Court but also the International Court of Justice has recognized the decisions made under the Army Act as due process. This decision of link-minded judges is against the decisions made by the Supreme Court in the past in 2014, 2015, and 2017. In 2015, 11 judges have validated the civilian trial in the military court.
Responding to this decision, a number of senior Supreme Court reporters were of it could be seen from today’s (Monday, October 23, 2023) decision that the same judges who had always given relief to PTI and whose political commitment is (was) as clear as day had given this decision on political grounds.
They were of the view that this decision should be called a “Relief attempt to PTI workers and the chairman”. This will not only play with the law but it will promote more misogyny, extremism, and corruption in the country in the days to come – because in the future people will again make it a normal and routine matter to attack sensitive military installations.
The response to the decision from journalists, writers, and families of martyred whose monuments were destroyed by PTI followers is of the view that the State of Pakistan should immediately appeal for its writ and authority – Second, take into account all the past decisions made by these judges in which civilians were prosecuted and punished according to law under the Army Act. It will happen because the state is always above and ahead of politics.
It is pertinent to mention that on May 9, the Parliament of Pakistan clearly passed a resolution that the involved evildoers should be tried in military courts. It is a dual process.
After the decision, some pertinent points raised by the legal circles include:
These are the arrested persons who are in custody for their involvement in the attack on GHQ Rawalpindi, Corps Commander House Lahore, attack on PAF Base Mianwali, attack on ISI Civil Lines Faisalabad, Hamza Camp, Bannu Camp, and Gujranwala Camp.
In the past, there have been attacks in GHQ, Karachi Airport, and Budh Bir including military installations. Trials of the attacks in the past were not in civil but in military courts.
Should all the people be acquitted according to today’s decision?
If the criminals of May 9 are not punished by the civil courts, the confidence of the people of Pakistan will be lost in the judicial system. If the criminals get immunity from the civil courts, the confidence of the terrorists will be strengthened and the crime rate will increase in the country. The federal government should file a petition immediately. Another problem is that countless civilians work in the installations of the Pakistan Armed Forces.
Now, with this decision, it seems that no matter how serious a crime someone commits, it cannot be tried under military law. – It is an open mockery of the Constitution to make a decision on such serious matters related to national security without hearing it properly. – In such serious matters, such a decision has no merit. Why will the government appeal against the decision in which these four Judges will not be included and the rest of the judges will decide according to the constitution and law?
Why Military Courts Trial is needed in cases where the state was under target?
The snail-pace working of courts, manipulating the facts and eye-witnesses, and redundant law of witnesses are some of the reasons that place Pakistan’s civil judicial system at the lowest in the world.
In February 2023, the Supreme Court released data on the pendency of cases in the Supreme Court and said that a total of 24,303 cases were decided during the period from 2nd Feb 2022 to 25th Feb 2023 against the total institution of 22,018 new cases during the said period. The pendency/backlog of cases in the Supreme Court of Pakistan has thereby been reduced by 2,285 cases from 54,735 to 52,450. The number of cases decided in the annual period ending February 2023 is the highest since 2018 when the total disposal was 16,961 cases.
Meanwhile, a newspaper report published by Daily Dawn on July 13, 2022, indicated that the superior and lower judiciaries have a backlog of 2.144 million cases as 4.102m cases were decided and 4.06m new cases were filed during 2021.
The report further indicates that the Supreme Court, Federal Shariat Court, and five high courts of the country disposed of 229,822 cases and 241,250 new cases were instituted during last year and pending cases stood at 389,549 before the superior courts on Dec 31 while the same tally was 378,216 on Jan 1, 2021.
The report added that 1,783,826 cases were pending trial at the start of last year before the district judiciary of the country and it adjudicated 3,872,686 cases and 3,822,881 fresh cases were filed during last year and total pendency stood at 1,754,947 before lower judiciary on Dec 31.
While referring to the sources the report said that according to the statistics gathered by the Law and Justice Commission of Pakistan, at the start of 2021, 46,695 cases were pending before the Supreme Court and at the end of the year, they stood at 51,766 as 12,838 cases were decided while 18,075 new cases filed at the apex court last year.
An academic paper published in the Journal of Law & Social Studies (JLSS) (Volume 3, Issue 2, pp 124-132) titled “Justice Delayed or Denied: The Myth of Justice in Pakistan” authored by Dr. Muhammad Bilal who has done his Ph.D. degree in Law from the United Kingdom believes that:
“ A report “Study of the informal justice system in Pakistan” estimated that Pakistani courts need “15 years” to try the backlog of pending cases and there will be a condition that in those “15 years” no new case should be instituted in the courts. Normally Pakistani courts take “25 years” to decide a case and “5 years” more to execute the decree (Khan, 2004). Due to such behavior of courts, the cases are accruing day by day. In January 2021 the number of pending cases was “2162042” (Statement of cases Pending, January 2021). But according to “Consolidate statement of pending cases, pendency, institution and disposal of cases during the period August 2021” the Pakistani Judiciary has a backlog of “2,177,527” cases in August So from January to August 15485 cases added to the stock of pending cases. The cases are accumulating day by day consequently, delaying and denying justice”.
Sane elements within the higher judiciary understand that trials of cases of a terrorist nature should be expedited on a fast track and cases in which the military was under attack should also be heard by Military Courts. In these circumstances, rejecting the law of trial of civilians involved in attacking military installations seems nothing just an attempt to safeguard the PTI cadre that in fact had been saved by like-minded judicary for a long.
