May 9 riots: SC reserves verdict on pleas challenging military trials of civilians

A five-member Supreme Court (SC) bench on Monday reserved the verdict on a set of petitions challenging the military trials of civilians following violent protests in the country after PTI Chairman Imran Khan’s arrest on May 9.

Justice Ijazul Ahsan headed the bench comprising Justices Munib Akhtar, Yayha Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik.

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

On Sunday, at least nine accused facing trials under the Army Act moved the apex court for early conclusion of their cases by the military courts. In their separate applications, the suspects pleaded that they had complete faith and confidence in the military authorities to provide justice to them and to other accused persons.

Following the violence on May 9 which targeted civilian as well as military installations, a total of 102 persons were taken into custody for their involvement in the attacks on military establishments, including the General Headquarters in Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, and an office of the Inter-Services Intelligence (ISI) in Faisalabad.

At the outset of today’s 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. He said 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.”

AGP 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 Official Secrets 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 said.

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.

He 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.

During the hearing, 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 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 in necessary [for trial in military courts],” she said.

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

Case background

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

The observations had come when Attorney General for Pakistan (AGP) Mansoor Usman Awan emphasised that soldiers were equipped with sophisticated weapons and were trained to shoot, but they had exercised restraint on May 9.

Former CJP Jawwad S. Khawaja, senior counsel Aitzaz Ahsan, Karamat Ali, Zaman Khan Vardag, Junaid Razzaq, the Supreme Court Bar Association, PTI chief Imran Khan, Hafeezullah Khan Niazi, Lt-Col Inamul Rahiem, Naeemullah Qureshi etc have filed the petitions before the apex court.

Human rights groups and several politicians have criticised the trials of civilians in military courts, warning that they will undermine civilian supremacy.

After the Oct 11 upholding of the Supreme Court (Practice and Procedure) Act 2023, it is now a legal requirement that all cases moved under Article 184(3) involving interpretation of the Constitution should be heard by a bench consisting of not less than five SC judges.

And under Section 5 of the law, any decision by the five-judge bench could be challenged and any appeal in this regard could be filed within 30 days from the court order which will have to be fixed within a period not exceeding 14 days.

During earlier hearings, the SC had turned down the government request to constitute the full court consisting of all available judges.

Recently an application had been filed by Junaid Razzaq with a request to fix the military courts’ case as early as possible since he had been informed that the trial by military courts of civilians had commenced in violation of SC directions not to commence the trial before seeking prior permission from the apex court.

The applicant pleaded before the court that early hearing of the matter will be in the interest of justice, otherwise if the trial of his son — Azam Junaid — commenced and concluded in haste, the petitioner would suffer irreparable loss.