Pakistan's Supreme Court stops military trials of pro-Imran protesters

Tariq Butt, Correspondent

A five-member Supreme Court (SC) bench in 4-1 split judgment on Monday declared null and void the trial of civilians by military courts arrested in the wake of violent protests by the Pakistan Tehrik-e-Insaf (PTI) on May 9 following the arrest of its chairman and former prime minister Imran Khan.

The court announced its verdict in the case a few hours after it was reserved following a brief hearing. Justice Ijazul Ahsan headed the bench comprising Justices Munib Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik.

In a 4-1 majority ruling, the court said that the trial of May 9 suspects would be conducted in ordinary courts. Justice Afridi disagreed with the majority verdict.

"Under the Supreme Court verdict all the cases, which were being tried in the military courts, cannot be proceeded. They could only be held in the civilian courts," PTI lawyer Aitzaz Ahsan told reporters.

"Today's verdict is highly significant and it will help strengthen the constitution, law, and the civilian institutions of the country."

The court also declared Section 2(1)(d) of the Pakistan Army Act, which elaborates on persons subject to this law, to be in violation of the Pakistan Constitution. The court also declared Section 59(4) (civil offences) unconstitutional.

Section 2(1)(d) of the Pakistan Army Act states: Persons not otherwise subject to the Army Act who are accused of seducing or attempting to seduce any person subject to this law 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) states: 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.

The court said that the cases should be tried in criminal courts in accordance with the nature of the crime. The verdict can be appealed before a full court by the State.

A six-judge bench, which included former chief justice of Pakistan Umar Ata Bandial, had been hearing the petitions since June. However, after his retirement, the bench was reduced to five judges.

At the outset of the hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and said that he would present arguments on why a constitutional amendment was not required in the case at hand.

"A trial in military courts fulfills all the requirements of criminal courts,” he said and added that the military trials of civilians had formally commenced. He said that the verdicts issued by the military courts would also detail the reasoning.

The AGP said that a matter concerning an attack on a restricted area or building could also go to military courts.

At one point, Justice Ahsan asked, "A constitutional amendment was required to try terrorists but not for civilians? I am trying to understand your argument.”

Awan said that if the accused had a "direct link” to the armed forces, then a constitutional amendment was not required. He said that the suspects would be tried under Section 2(1)(d)(ii) of the Army Act.

He then noted that the court had raised a question about the framing of charges against the suspects. "All the requirements of a criminal case will be met in the trial under the Army Act.”

He further said that the trial of May 9 suspects would be similar to how it is conducted in criminal courts. "The reasoning will be given in the verdict and the evidence will be recorded.”

Awan said all the requirements for fair trial under Article 10-A (right to fair trial) of the Constitution would be fulfilled. He said that appeals against the verdict could also be filed in the high courts and subsequently the apex court.

Justice Ahsan asked about those who had been tried by military courts in the past. "Were the accused in 2015 civilians, foreigners or terrorists?” he asked.

The AGP replied that the suspects included both nationals and foreigners. He said that those tried in 2015 also included those who facilitated terrorists.

Justice Ayesha Malik also asked the AGP how he would connect his arguments with Article 8(3) of the Constitution. "According to the law, a link to the armed forces is necessary for trial in military courts,” she said.

Justice Ahsan remarked that the Constitution protected the fundamental rights of citizens.

The hearing of the case was put off indefinitely in August with former Chief Justice Bandial saying that the court did not want to see the Pakistan Army pointing their guns at civilians, since they were meant to defend the country and its people.