In a landmark verdict, a five-member bench of the Supreme Court – headed by Justice Ijaz Ul Ahsan – has said no to civilians being tried in military courts. In a 4-1 verdict, the apex court bench issued the order on petitions filed by the PTI chief and others and declared Section 2(1)(d) of the Army Act, which lays out what persons will be 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. For many in the legal fraternity and civil society, this was a verdict long overdue. The Supreme Court has essentially said that those 103 individuals arrested in the May 9 events “shall be tried by criminal courts of competent jurisdiction established under the ordinary and/or special law of the land in relation to such offences of which they may stand accused”. It has further said that any action or proceedings under the Army Act against anyone “similarly placed” will have “no legal effect”.
Following the May 9 attacks, when the PDM government and its representatives announced that civilians involved in the rioting and attacks on military buildings and installations would be tried under military courts, many in the legal fraternity had pointed out how this would be against the constitution because even in the past following the APS attack, it required a constitutional amendment to allow military courts and even that had – and still does – faced intense criticism and scrutiny by human rights defenders and many legal experts. What is the argument used against trials of civilians in military courts? Human rights and legal analysts have reasoned that when civilian courts are available then what is the need to try civilians in other courts? They have also pointed to the fear that such trials could impact Article 10A – which provides citizens the right to fair trial. Even after the APS attacks, observers had pointed out that exceptional laws for exceptional situations must be short-lived and it is bad precedent for such laws and measures to continue on.
This is a country where even the usual tracks of justice are hardly transparent – but at the very least there is recourse in terms of access to proceedings and appeals in trials. In military court trials, even that would have been lost. There are enough laws on our statutes to cover the trials of those accused of the May 9 riots. Why not trust our own system? A system sanctified by the constitution. The Supreme Court bench certainly seems to think that is the way to go about this. Of course, there will naturally be appeals filed by the state. The matter then may not have completely settled, but for now rights defenders are happy that the apex court has upheld the constitutional right of all civilians to have a free and fair trial in which they have a right to appeal. As it is, the country desperately needs a separation of powers tutorial for all its institutions. This could be a great first lesson in relearning this doctrine.