Military Courts case

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Military Courts case
Emblem of the Supreme Court of Pakistan.svg
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]
DecidedOctober 23, 2023;3 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 sittingJustices
Case opinions
MajorityIjazul 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]

Contents

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]

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

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References

  1. 1 2 3 "Supplementary Cause List 324 of 2023" (PDF). Supreme Court of Pakistan. 26 June 2023. Retrieved 26 June 2023.
  2. ↑ Dawn.com (26 June 2023). "Lieutenant general among 3 sacked as part of army's self-accountability into May 9 incidents: DG ISPR". DAWN.COM. Retrieved 26 June 2023.
  3. ↑ Gul, Imtiaz. "Military Courts – Performance, Review and Challenges". Center for Research and Security Studies. Retrieved 26 June 2023.
  4. ↑ "Aitzaz Ahsan challenges military courts". The Express Tribune. 17 June 2023. Retrieved 10 January 2024.
  5. ↑ "Former CJ also challenges military courts". The Express Tribune. 21 June 2023. Retrieved 26 June 2023.
  6. ↑ "Committee against Torture examines initial report of Pakistan". OHCHR. Retrieved 26 June 2023.
  7. ↑ "Military Injustice in Pakistan" (PDF). International Commission of Jurists. January 2019. p. 3. Retrieved 26 June 2023.
  8. ↑ "Military Injustice in Pakistan" (PDF). International Commission of Jurists. January 2019. p. 11. Retrieved 26 June 2023.
  9. ↑ "Six judges declare 21st Amendment, military courts illegal". DAWN.COM. 6 August 2015. Retrieved 11 January 2024.
  10. ↑ "Imran Khan: Mass protests across Pakistan after ex-PM arrest". BBC News. 9 May 2023. Retrieved 26 June 2023.
  11. ↑ Najjar, Hafsa Adil,Farah. "Imran Khan arrest updates: Protests after ex-Pakistan PM held". www.aljazeera.com. Retrieved 26 June 2023.{{cite web}}: CS1 maint: multiple names: authors list (link)
  12. ↑ "Pakistan says 102 in military court over ex-PM Khan arrest violence". France 24. 26 June 2023. Retrieved 26 June 2023.
  13. ↑ Bhatti, Haseeb (2 August 2023). "SC rejects plea seeking full court on military trials of civilians". DAWN.COM. Retrieved 11 January 2024.
  14. ↑ "CHIEF JUSTICE TO HEAD NINE-MEMBER LARGER BENCH: SC takes up pleas against military court trials today". Daily Times. 22 June 2023. Retrieved 26 June 2023.
  15. ↑ Iqbal, Nasir (23 June 2023). "SC seeks full record of May 9 arrests after Isa 'rises' from bench". DAWN.COM. Retrieved 25 June 2023.
  16. ↑ "Justice Faez Isa's note on civilians' military trials removed from SC website". 23 June 2023. Retrieved 25 June 2023.
  17. ↑ Ijaz, Raja Mohsin (26 June 2023). "SC bench hearing pleas against military courts dissolved again". ARY NEWS. Retrieved 26 June 2023.
  18. ↑ "CJP Bandial hangs up his robes". The Express Tribune. 16 September 2023. Retrieved 8 January 2024.
  19. ↑ Bhatti, Haseeb (23 October 2023). "May 9 riots: SC declares military trials of civilians null and void". DAWN.COM. Retrieved 8 January 2024.
  20. ↑ "THE PAKISTAN ARMY ACT, 1952" (PDF). The Pakistan Code, Ministry of Law and Justice. 19 August 2023. pp. 12, 33. Retrieved 8 January 2023.
  21. ↑ "'Restoring people's faith in courts': Experts hail SC verdict on military trials". DAWN.COM. 24 October 2023. Retrieved 8 January 2024.
  22. ↑ Wasim, Amir (14 November 2023). "Senators demand review of military trial verdict". DAWN.COM. Retrieved 8 January 2024.
  23. ↑ Wasim, Amir (21 November 2023). "Resolution in support of military courts remains bone of contention". DAWN.COM. Retrieved 8 January 2024.
  24. ↑ Wasim, Amir (18 November 2023). "More clamour in Senate over military courts". DAWN.COM. Retrieved 8 January 2024.
  25. ↑ "Interim Pakistan government challenges ruling on trial of civilians in military courts". Anadolu Agency. Retrieved 8 January 2024.
  26. ↑ Iqbal, Nasir (25 November 2023). "Punjab latest to challenge SC verdict on military courts". DAWN.COM. Retrieved 8 January 2024.
  27. ↑ Iqbal, Nasir (21 November 2023). "Intra-court appeal against SC order on trial by military courts". DAWN.COM. Retrieved 8 January 2024.
  28. ↑ "Punjab govt moves SC against military trials verdict". The Express Tribune. 21 November 2023. Retrieved 8 January 2024.
  29. ↑ Sigamony, Terence J. (12 December 2023). "Military courts, SJC notices: Judge objects to constitution of benches". Brecorder. Retrieved 8 January 2024.
  30. ↑ Rashid, Sohail (12 December 2023). "Ex-CJP objects to inclusion of Justice Tariq in bench hearing military court appeals". Samaa News. Retrieved 9 January 2023.
  31. ↑ Bhatti, Haseeb (13 December 2023). "May 9 riots: SC suspends verdict nullifying military trials of civilians pending final ruling". DAWN.COM. Retrieved 8 January 2024.
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