<\/p>\n
Allowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the judiciary’s independence after the 26th Constitutional Amendment, says lawyer Mirza Moiz Baig.<\/p>\n
In a landmark move fraught with legal and political implications,the Supreme Court (SC) has conditionally greenlit military courts to announce verdicts for 85 civilians<\/a> who were still in custody for their alleged involvement in last year\u2019s May 9 riots.<\/p>\n The development came as a seven-judge bench resumed hearing a case pertaining to the trial of more than 100 civilians<\/a> for their alleged role in attacks on army installations during the riots.<\/p>\n Announcing the directives<\/a> on Friday, Justice Aminuddin Khan, who is heading the constitutional bench, said: \u201cSuspects who can be accorded concessions in their sentences, should be given so and released.<\/p>\n \u201cSuspects who cannot be released should be moved to jails once their sentence has been pronounced,\u201d he ordered.<\/p>\n The contentious decision has sparked a debate among legal circles, raising concerns about whether it marks a retreat from last year\u2019s widely praised ruling<\/a> that military trials for civilians violated the Constitution.<\/p>\n To unpack the ramifications for the accused and Pakistan\u2019s constitutional framework alike, we sought insights from lawyers.<\/p>\n According to lawyer Abdul Moiz Jaferii, \u201cthe failure of the SC to decide this appeal against the legality of the military court trials of civilians in a timely fashion has drawn critique from both \u2014 those that support the underlying judgment as well as those who are against it.\u201d<\/p>\n Jaferii argued that the delay has compounded an already complex matter for the constitutional bench. \u201cThe government has repeatedly made clear that the stay order against the judgment<\/a> given by the bench when it was headed by Justice Tariq Masood has become an impediment in the release of people, who even where [SIC] found guilty, would have served their punishment periods already,\u201d he explained.<\/p>\n In his opinion, what has happened is \u201cthat the Supreme Court is trying to correct for that delay by allowing these trials to culminate.\u201d<\/p>\n However, he described the court\u2019s decision as an inadequate fix. \u201cThis particular order today dilutes the issue without deciding it; and lends force to the establishment narrative of the guilt of these individuals and the competence of their trials until it is effectively reversed.\u201d For Jaferii, a simpler, fairer approach would have been to release these civilians on bail while deliberations on the legality of their trials continued.<\/p>\n Barrister Asad Rahim Khan framed the verdict as a grim milestone for Pakistan\u2019s judiciary. \u201cThe 26th amendment has achieved its purpose. The post-restoration judiciary is now a thing of the past,\u201d he remarked.<\/p>\n \u201cIn passing this order, the judges join the ranks of the bureaucracy, the parliament, the press, and the executive, all united in a straight line,\u201d he stated, highlighting the broader institutional alignment the decision reflects.<\/p>\n \u201cThis bench also wins the unique distinction of allowing military trials during peacetime. Court-martials of average citizens were usually associated with martial law (Umar vs Crown)<\/em>, emergency rule (FB Ali vs Federation)<\/em>, or specific amendments during insurgency (District Bar Association, Rawalpindi vs Federation)<\/em>. What the \u2018constitutional bench\u2019 actually thinks about the Constitution it\u2019s meant to protect is clear from this order,\u201d he commented.<\/p>\n For him, the path forward is unequivocal: \u201cThere can be no way back from our current crisis until the challenge to this disastrous amendment is heard.\u201d<\/p>\n In a similar vein, lawyer Basil Nabi Malik expressed grave concerns over the SC\u2019s decision, pointing out its departure from earlier rulings. \u201cThe SC had earlier pronounced that the trial of civilians in military courts was unconstitutional. By allowing military courts to announce verdicts in cases heard by them, without the SC even deciding the appeals in question, it has given rise to a strong impression that is just another sad consequence of the enactment of the infamous 26th Amendment,\u201d he lamented.<\/p>\n Malik emphasised the constitutional stakes at hand: \u201cThe fact of the matter is that the apex court had already held such trials to be unconstitutional, and before allowing military courts to adjudicate upon the liberties of any civilian, the legality or otherwise of such a decision should have been conclusively determined by the SC in the appeals before it.\u201d<\/p>\n \u201cIt is important to note that the matters have been pending for some time, and it is remarkable that even at this late stage, the SC\u2019s constitutional benches are relying on interim measures for the sake of expediency as opposed to actually deciding the matter before them and delivering justice and liberty,\u201d he said, criticising the delays in resolving the matter.<\/p>\n Lawyer Mirza Moiz Baig, too, voiced alarm over the apex court\u2019s decision to permit military courts to pronounce verdicts conditionally, linking it to deeper concerns about judicial independence. \u201cAllowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the independence of the judiciary after the 26th Constitutional Amendment,\u201d he stated.<\/p>\n He underscored the contradictions between last year\u2019s ruling and today\u2019s decision, stating that \u201cgiven that the trial of civilians by military courts was declared unconstitutional by a five-member bench unanimously, allowing such courts to pronounce verdicts against civilians even before the constitutional bench finally decides the appeal on merits raises concerns about the integrity of judicial decisions while also jeopardising civilians\u2019 right to fair trial and due process.\u201d<\/p>\n Justice (retd) Shaiq Usmani, speaking to DawnNewsTV<\/em>, addressed the implications of the SC\u2019s ruling, noting that while military court orders are appealable in the high court, this development marks a significant shift. \u201cUntil now it was being said that military courts have no right to carry out civilian trials,\u201d he remarked.<\/p>\n Describing the impact on political dynamics, he added, \u201cthis is a significant development and it is a setback for the PTI.\u201d<\/p>\n \u201cIn my personal opinion, according to the Constitution, a civilian cannot be tried under the military court given you are not functioning under the military law.\u201d However, he acknowledged a legal provision in the Pakistan Army Act<\/a> which says that \u201cif anyone does something which damages the military installation, under that condition, the military court can carry out their (civilian) trial.\u201d<\/p>\n Lawyer Yasser Hamdani reflected on the complexity of the situation, stating that \u201cthe events of May 9 2023 were extraordinary \u2014 there is no question about it. However, the question of whether military courts can fairly dispense justice to individuals under the Army Act and in line with the constitutional guarantee of fair trial is a contentious matter.\u201d<\/p>\n He expressed his ambivalence about the current development, saying, \u201cI\u2019m unsure how to react to this news because, on one hand, one wants those responsible for May 9 to be held accountable. However, the erosion of constitutional guarantees in the process is somewhat problematic. I\u2019m not convinced that a civilian should be tried under the Army Act,\u201d he concluded.<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":" Allowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the judiciary’s independence after the 26th Constitutional Amendment, says lawyer Mirza Moiz Baig. In a landmark move fraught with legal and political implications,the Supreme Court (SC) has conditionally greenlit military courts to announce verdicts for 85 civilians who were still in custody for […]<\/p>\n","protected":false},"author":2,"featured_media":88122,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"fifu_image_url":"https:\/\/i.dawn.com\/large\/2024\/12\/13145759dcbaa22.gif?r=145811","fifu_image_alt":"","footnotes":""},"categories":[10],"tags":[],"class_list":["post-88121","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-pakistan"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/88121","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/comments?post=88121"}],"version-history":[{"count":0,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/posts\/88121\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media\/88122"}],"wp:attachment":[{"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/media?parent=88121"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/categories?post=88121"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/pakistaninewspaperlist.com\/news\/wp-json\/wp\/v2\/tags?post=88121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\u2018Order dilutes the issue without deciding it\u2019<\/h2>\n
A \u2018disastrous\u2019 amendment<\/h2>\n
\u2018Sad consequence of the infamous 26th Amendment\u2019<\/h2>\n
\u2018Integrity of judicial decisions\u2019 under question<\/h2>\n
A legal loophole<\/h2>\n
\u2018Erosion of constitutional guarantees\u2019<\/h2>\n