Legal experts weigh in on SC verdict against civilians' trial in military courts

After the Supreme Court's (SC) landmark decision against civilians' trials in military courts, legal experts have weighed in on the repercussions of today's verdict and what it means for constitutional supremacy and the preservation of fundamental human rights.

The top court, in its unanimous verdict by a five-member bench, declared civilians' trials in military courts null and void as it admitted the petitions challenging the trial of civilians involved in the May 9 riots triggered by the arrest of Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan in a corruption case.

The five-member apex court bench — headed by Justice Ijaz Ul Ahsan, and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik — heard the petitions filed by the PTI chief and others.

The apex court concluded that Section 2(D)(1) was in contradiction with the Constitution. However, the verdict was 4-1 (with Justice Yahya Afridi reserving his decision) on this point but the rest of it was unanimous.

Trial on 'merit' — Barrister Muhammad Ahmed Pansota

I think the very concept that a civilian cannot be tried in military courts has been dilated upon and upheld by the Supreme Court, and certain amendments were also made by the government to try civilians who were involved in the May 9 incidents in the military courts.

So I think that concept plus Section 2(1)(d) of the Army Act has been held to be contrary to the Constitution and the law on the subject. I think another important aspect of this case is that now the case will be tried most probably by the anti-terrorism courts and the case will be tried on merit.

Prior to that, even if a judgment had been against someone by a military court, there was every chance that the judgment would have been overturned by superior courts — on the grounds of maintainability.

But now the case will be tried on merits and I think all those involved in those gruesome incidents will be punished and those who weren't, will not be punished. So I think it's more important to punish those who were involved and I believe the anti-terrorism court can do a better job.

'Law is above you' — Barrister Aitzaz Ahsan

The Supreme Court’s verdict declaring the military trial of civilians as null and void will strengthen the Constitution, democracy, and legal system.

The apex court judgment will have lasting effects. This was an important case and an important verdict.

Today is a 'historic day. This verdict will strengthen the country’s democratic system and its foundations.

The ruling means that the “Constitution reigns supreme". SC has also rejected the government's plea to interpret the law and allow the trial of civilians under army laws.

A king is a king because the law makes him a king. The ruling means the 'law is above you'.

'The right decision' — Ahsan Bhoon 

I believe that the apex court's verdict is absolutely right and in accordance with the Constitution.

This is a constitutional issue and our bar councils and associations have maintained that civilians must not be tried in military courts.

The prior decisions — contradictory to today's verdict — on this issue were due to the 21st Amendment, but even then, CJP Qazi Faez Isa had given a dissenting note opposing civilians' trials in military courts.

[This stance] is in line with the constitutional provisions [...] especially when your own citizens — whether right or wrong — agitate in pursuance of their rights [...] thereafter they must not be tried under the army act.

This is the right decision and a propitious development.

My personal opinion as a student of law is that this decision will be upheld even if it is appealed [...] as even when some judges adjudicated on this issue in contradiction to today's verdict, those decisions were not well received [...] whether it be the 2017 decision, 2014 or that of 2008 [...] The legal fraternity does not think highly of those decisions.

We welcome this judgment, this is a good judgment.

Even if there is no constitutional amendment, in case of ultimate interpretation by the SC or High Court [...] there is no justification to try civilians through military courts.

'Courageous' — Barrister Asad Rahim Khan

The court's short order is courageous and potentially expansive: while upholding an ageless principle — that civilians cannot be tried by military tribunals as long as civilian courts are functional — it has also struck down exceptions to the rule.

Subject to what the detailed reasons will say, this may well mean a decision that removes any ambiguity left over from earlier judgments. Today's verdict reminds us why citizens still look to the SC for justice.

'Protected and defended fundamental rights' — Barrister Rida Hosain

In the prevailing circumstances, this is a courageous decision by the SC [...] Judicial power over civilians must be exercised by the judiciary.

The military (as part of the executive) cannot usurp the court’s power.

It is for a civilian court to judge the guilt and innocence of civilians — it is not a power that should be vested with serving army officers.

At the time of the 21st Amendment, the weakness of the criminal justice system was one of the arguments made to justify the trial of civilians by military courts.

Today, the SC has held that trials must take place in ordinary criminal courts. This decision will pave the way for strengthening and developing our legal system.

Crucially, fundamental rights lose all importance if they can arbitrarily be taken away. Court martial proceedings violate the right to a fair trial.

In holding that the section allowing court martial of civilians is unconstitutional, the SC has protected and defended fundamental rights guaranteed in the Constitution.

Verdict 'bolstered' judiciary independence — Advocate Sheikh Saqib Ahmed

Over the course of Pakistan's 76-year history since gaining independence, the country has experienced more periods of direct military rule than civilian governance, and Pakistan's historical narrative is characterised by the interplay between an underdeveloped and undisciplined political system and a well-structured military establishment.

The aftermath of the events on May 9 and 10 was predominantly political, resulting in the arrest of numerous civilians on grave accusations and handing over their custody to the military for trial.

A five-member larger bench has appropriately and constitutionally ruled the military trials of civilians to be null and void as every citizen is entitled to a fair trial and due process enshrined in Article 10-A of the Constitution and every accused has a right to prove his innocence by prevailing criminal justice system.

We have ordinary and special criminal courts i.e., anti-terrorism courts and so forth throughout the country for each offence(s) which are fully functional, independent, and competent to try and decide the guilt or innocence of the accused.

Furthermore, 'any law' that would be inconsistent or in derogation of fundamental rights shall be void as stated in Article 8 of the Constitution.

The Supreme Court, through its written judgment, unequivocally safeguarded and bolstered the independence of the judiciary, democracy, and the fundamental rights of citizens, which stand as the bedrock of the Constitution.

'Truly historic' — Advocate Salaar Khan

The SC ruling against the trial of civilians in military courts is one of those rare things that dares Pakistan to hope.

As of late, we have seen constitutional promises forgotten all too easily. This judgement affirms those promises not just to those tried in relation to events following the May 9, but to all civilians facing trials before military courts.

Four of the five judges on the bench have declared certain provisions of the Army Act to be unconstitutional (we have yet to read Justice Afridi’s opinion on this).

In doing so, they have struck at the very provisions that allow civilians to be tried under the Army Act. Seemingly this decision will now affect all such trials — past, present, and future.

Such a decision, in such times, is truly historic.

Civilians' military trial possible — Advocate Raja Khalid

The 1952 Army Act was amended in 1967 and Section 2(1)(d) was added [according to which] if a civilian commits an offence such as attacking military installations, then they can be tried by military courts.

Civilians were tried in military courts even during PTI Chairman Imran Khan's tenure. People who attacked Pervez Musharraf were also tried in military courts and their sentences were also duly carried out.

It would be better if civil courts carried out the trials instead of military courts. The decision should be challenged before the larger bench of the apex court.

The courts are there to interpret the law and not make it [...] with today's verdict, the apex court made a law [instead of interpreting the existing one].

Disclaimer: The viewpoints expressed in this piece are the experts' own and don't necessarily reflect Geo.tv's editorial policy.