UPDATED
The EU has warned that Pakistan could be violating a preferential trade deal. Without it, Pakistani exports could be hit by more than 20 percent, say experts.
Twenty-five supporters of former Prime Minister Imran Khan's PTI party were sentenced by a military court last week [File: KM Chaudhary/AP Photos]
By Abid Hussain
On 25 Dec 2024
Islamabad, Pakistan – The recent sentencing of 25 civilians by a military court in Pakistan drew sharp criticism from the United States, which accused the proceedings of lacking “judicial independence, transparency, and due process guarantees”.
“The United States is concerned by the sentencing of Pakistani civilians in a military tribunal and calls upon Pakistani authorities to respect the right to a fair trial and due process,” State Department spokesperson Matthew Miller said on X on Monday.
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Does Pakistan’s ex-PM Imran Khan face a military trial?
This US statement follows similar concerns expressed by the United Kingdom and the European Union (EU), which also questioned the use of military courts to try civilians.
The EU was the first to react to the December 21 military court verdicts, issuing a statement the next day expressing “concern” over the sentencing and adding that the verdicts appear “inconsistent with the obligations Pakistan has undertaken under the International Covenant on Civil and Political Rights” (ICCPR).
The EU also highlighted Pakistan’s beneficiary status under the Generalised Scheme of Preferences Plus (GSP+), which allows Pakistani exports to enter European markets duty-free — a reference that was widely seen as a subtle warning that a perceived failure to meet international human rights obligations could jeopardise this status.
So, why has Pakistan punished civilians through military courts, how has Islamabad responded to the criticism from the US, UK and the EU, and what is next — for Pakistan and its relations with the West
What were the military trials about?
The recent military trials stem from nationwide riots that followed the May 9 arrest of former Prime Minister Imran Khan in Islamabad last year.
Supporters of Khan’s Pakistan Tehreek-e-Insaf (PTI) party targeted government buildings, monuments and military installations, including the army headquarters in Rawalpindi and the residence of a senior military official in Lahore, which was set ablaze.
Khan was released within 48 hours following a Supreme Court ruling, but thousands of PTI workers were arrested for the violence. Of these, 105 were referred to military courts. In April this year, 20 people with a sentence of less than three years were released, leaving 85 still in custody.
On December 21, the military announced that 25 people had been convicted, with at least 14 receiving 10-year prison sentences.
The military has defended the proceedings, stating that they followed due process and ensured the legal rights of the accused.
Last month, the United Nations Human Rights Committee urged the Pakistani government to review legislation concerning military courts and revoke their jurisdiction over civilians.
How has Pakistan responded to criticism?
At the start of the week, Pakistan’s Ministry of Foreign Affairs responded to the EU’s comments. Spokesperson Mumtaz Zahra Baloch said the government was reviewing the statement, but indicated that Pakistan’s constitution and judicial system — not any foreign entity — would determine its domestic political and legal decisions.
On Tuesday, the Foreign Office issued a more detailed statement, insisting that Pakistan’s legal system “guarantees promotion and protection of human rights and fundamental freedoms”, and was consistent with “international human rights law”, including provisions of the ICPR.
“We will continue to engage with our international partners including the European Union to uphold the international human rights law, without any discrimination and double standards,” the statement said.
What is GSP+ status and what does it have to do with military courts?
GSP+ is a programme run by the EU to incentivise partner nations to improve governance standards and focus on sustainable development by offering them preferential trade access.
Under the EU’s GSP+, countries granted the status must adhere to and “effectively implement” 27 international core conventions – including the ICCPR – to continue benefitting from GSP+ status.
The conventions are non-economic in nature and focus on issues such as human rights, labour rights, environment and good governance.
Pakistan is one of eight countries enjoying GSP+ benefits, the primary among which is duty-free access to European markets. Bolivia, Cape Verde, Kyrgyzstan, Mongolia, the Philippines, Sri Lanka and Uzbekistan are the other countries the EU partners with under the GSP+ initiative.
In its statement on the Pakistan sentencing, the EU said under the ICCPR, people are entitled to a fair and public trial before an independent and impartial tribunal, with adequate legal representation.
The Pakistani government argues that its constitution allows civilians to be tried in military courts, a practice upheld even during Khan’s tenure as prime minister between 2018 and 2022.
Military trials, however, are often criticised for their secrecy and limited transparency. Although defendants are entitled to legal representation, these courts lack the public scrutiny characteristic of civilian trials.
Haroon Sharif, a former minister of state, warns that failure to uphold non-economic commitments could harm Pakistan’s economic interests.
“Such agreements are tools for political bargaining. When a country’s politics is fragmented, it impacts economic outcomes and creates serious challenges,” he told Al Jazeera.
Could Pakistan’s exports take a hit?
The PTI considers the military trials part of a broader, two-year crackdown against the party after Khan was ousted via a parliamentary no-confidence vote in April 2022.
The PTI leader was rearrested in August 2023 and remains jailed on charges including sedition and terrorism linked to the May 9 riots, among dozens of other cases against him. The military denies allegations of targeting the PTI.
Former Prime Minister Shahid Khaqan Abbasi also questioned the decision to try civilians in military courts, arguing that the trials provided international bodies with grounds for criticism.
“The government could have used anti-terrorism or other civilian courts, ensuring transparency. Military trials, while constitutional, conflict with fundamental rights,” he told Al Jazeera.
Former Finance Minister Miftah Ismail also described military trials as “archaic” and urged the government to diplomatically engage with the US, UK and the EU to explain the rationale for this use in this case.
“The GSP+ status is critical, as it allows duty-free access to European markets. Losing this status could reduce Pakistan’s exports by 20 to 30 percent,” he told Al Jazeera.
In 2023, EU figures showed that Pakistan was the largest GSP+ beneficiary, with more than 78 percent of its exports to Europe – valued at nearly 4 billion euros ($4.2bn) – entering duty-free. Textiles and clothing accounted for 73 percent of these exports.
Sharif, who was also the chairperson of Pakistan’s Board of Investment (BoI), says the country’s economic managers need to be cognisant of the fact that EU countries, as well as the UK and the US, wield major influence over decisions at the International Monetary Fund (IMF), which is providing Pakistan with a lifeline – $7bn loan.
“Pakistan is isolating itself by not engaging with the global community and their institutions, and this has a heavy transactional cost due to our ongoing domestic political wrangling,” he said.
“The country must reduce the intensity of this volatile political landscape and must create space for itself with a professional outlook, and find a way to plug into global institutions. Otherwise, incompetence might lead to market shocks,” Sharif said.
Source: Al Jazeera
May 9 riots: Military courts hand 25 civilians 2-10 years’ prison time
Published December 21, 2024
Military courts have sentenced 25 civilians to prison terms ranging from two to 10 years for their involvement in violent attacks on military installations during nationwide riots on May 9, 2023, according to a statement issued by the Inter-Services Public Relations (ISPR) on Saturday.
The development comes over a week after the Supreme Court’s constitutional bench conditionally allowed military courts to pronounce the verdicts of 85 under-custody civilians in cases pertaining to the May 9 riots.
What we know so far:Punishments range from 2-10 years, with 14 of 25 given maximum sentences
All convicts retain right to appeal and other legal recourses, military says
PTI ‘rejects’ sentences
Ministers hail verdicts, with Asif calling for ‘planners’ to be punished
Lawyers concerned if due process followed, hope for fair trials
Following today’s announcement, persons who can be released after remissions can “be released forthwith and the persons who have to yet undergo the sentence awarded to them, their custody” will be handed over to the “concerned jail authorities”, as per the SC order.
The bench had ordered that the announcement of judgements would be subject to a final determination of the appeals before the SC, and without prejudice to the rights of those 85 accused persons.
During the December 13 hearing, Additional Attorney General Amir Rehman had assured the court that the prisoners would be dealt in accordance with the jail manual. However, the bench did not agree when the counsel for the petitioners requested the SC that the prisoners be placed under the custody of a civilian court.
Following the arrest of the ex-premier on May 9, 2023, from the Islamabad High Court’s premises by paramilitary forces, riots erupted across the country that went on for at least 24 hours.
The convictions announced today primarily relate to attacks on several key military sites, including Jinnah House, General Headquarters (GHQ) in Rawalpindi, and Pakistan Air Force (PAF) Base Mianwali.
In its statement today, the military said, “In light of the Supreme Court decision, Field General Court Martial (FGCM) have in first phase promulgated the punishments to following 25 accused; after examining all evidence, affording all legal rights to the accused and completion of due process.”
In this first phase of sentencing, the military courts have handed down punishments ranging from two to 10 years of rigorous imprisonment.
“All convicts retain the right to appeal and other legal recourses, as guaranteed by the law and the Constitution,” the ISPR said.
It further said that “promulgation of the sentences of remaining accused is also being done and will be announced shortly as and when the due process is complete”.
The ISPR also released a video showing the convicts and their deeds for which they had been sentenced.
The military said the events of May 9, 2023 were “politically provoked violence and arson at multiple places, marking a dark chapter in the history of Pakistan”.
“Building on a sustained narrative of hate and lies, politically orchestrated attacks were carried out on the installations of the armed forces including desecration of the monuments of shuhada,” the military said.
“These blatant acts of violence not only shocked the nation but also underscored [the] necessity of checking this unacceptable attempt of political terrorism to impose own perverted will through violence and coercion,” the statement added.
It noted that on Dec 13, 2024, a “seven-member constitutional bench of the Supreme Court of Pakistan directed that the cases pending due to an earlier order of the Supreme Court be finalised and judgements in the cases of those accused found involved in these violent incidents be announced”.
The ISPR statement read: “Sequel to the events of this ‘Black Day’, through meticulous investigations, irrefutable evidences were collected to legally prosecute the accused involved in the 9th May tragedy.
“Certain cases were subsequently referred for Field General Court Martial (FGCM) as per law, where they underwent trials following due process,” it added.
“This is an important milestone in dispensation of justice to the nation,” the military asserted.
It continued: “It is also a stark reminder to all those who are exploited by the vested interests and fall prey to their political propaganda and intoxicating lies, to never take law in own hands ever in the future.”
The ISPR noted: “Many accused are also being tried in various Anti-Terrorist Courts and their cases are being pursued as per the law, however, justice would truly be fully served once the mastermind and planners of 9th May Tragedy are punished as per the Constitution and laws of the land.
“State of Pakistan will continue to [vigorously] pursue dispensation of justice to ensure establishment of inviolable writ of the state, so as to uproot this evil of violence driven disruptive and destructive politics based on hate, divisiveness and baseless propaganda,” the military vowed.
At least 10 people lost their lives and hundreds sustained injuries, while approximately 40 public buildings and military installations were damaged, including Lahore Corps Commander’s House (Jinnah House) and Askari Tower in Lahore, General Headquarters (GHQ) in Rawalpindi, Inter-Services Intelligence (ISI) Office in Faisalabad, FC Fort in Chakdara, Radio Pakistan building in Peshawar, Toll Plaza at Swat Motorway and the PAF Base Mianwali.
In total, 62 outbreaks of violence were documented, inflicting a loss of Rs2.5 billion on the country, of which, according to the state, Rs1.98bn in losses were suffered by the army. The military says the events were a coordinated attack by the PTI leadership.
In its widely praised verdict, a five-member bench on Oct 13, 2023 had unanimously declared the military trials of 103 civilians null and void.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
However, on December 13 last year, in a 5-1 majority verdict, the SC conditionally suspended its own Oct 23 ruling — albeit by a different bench — pending a final judgement as it heard a set of intra-court appeals (ICAs).
Earlier in March, a six-member SC bench had also conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its Dec 13 injunction, ordering that military courts could commence trials but they would not convict or acquit any suspect until the pendency of government-instituted ICAs.
Punishments range from 2-10 years
Ten-year sentences were handed down to 14 of the 25 persons convicted, with one each given nine-year, seven-year, and three-year terms; six years to two; four years to another two; and two years to four.
Out of the total convictions, 11 were linked to the attacks on Jinnah House; five to Punjab Regimental Centre Mardan; two each to GHQ, PAF Base Mianwali and Multan Cantt Check Post; and one each to Chakdara Fort, ISI Office Faisalabad incident, and Bannu Cantt.
Among those receiving maximum sentences are Jan Muhammad Khan and Muhammad Imran Mehboob for the Jinnah House attack, Raja Muhammad Ehsan for the GHQ incident, and Anwar Khan for involvement in the PAF Base Mianwali attack.
According to the press release, the following 25 people were handed down the sentences:Jan Muhammad Khan — involved in Jinnah House incident (10 years)
Muhammad Imran Mehboob — involved in Jinnah House incident (10 years)
Raja Muhammad Ehsan — involved in GHQ attack incident (10 years)
Rehmat Ullah — involved in Punjab Regimental Centre Mardan incident (10 years)
Ali Iftikhar — involved in Jinnah House incident (10 years)
Zia ur Rehman — involved in Jinnah House incident (10 years)
Adnan Ahmed — involved in Punjab Regimental Centre Mardan incident (10 years)
Shakir Ullah — involved in Punjab Regimental Centre Mardan incident (10 years)
Anwar Khan — involved in PAF Base Mianwali incident (10 years)
Abdul Hadi — involved in Jinnah House incident (10 years)
Ali Shan — involved in Jinnah House incident (10 years)
Daud Khan — involved in Jinnah House incident (10 years)
Umar Farooq — involved in GHQ attack incident (10 years)
Babar Jamal — involved in PAF Base Mianwali incident (10 years)
Muhammad Afaq Khan — involved in Bannu Cantt incident (nine years)
Daud Khan — involved in Chakdara Fort incident (seven years)
Faheem Haider — involved in Jinnah House incident (six years)
Muhammad Hashir Khan — involved in Jinnah House incident (six years)
Zahid Khan — involved in Multan Cantt Check Post incident (four years)
Muhammad Ashiq Khan — involved in Jinnah House incident (four years)
Khuram Shahzad — involved in Multan Cantt Check Post incident (three years)
Muhammad Bilawal — involved in Jinnah House incident (two years)
Said Alam — involved in Punjab Regimental Centre Mardan incident (two years)
Laeeq Ahmed — involved in ISI Office Faisalabad incident (two years)
Yasir Nawaz — involved in Punjab Regimental Centre Mardan incident (two years)
PTI ‘rejects’ sentences, ministers want ‘planners’ punished
Following the announcement, Opposition Leader in the National Assembly Omar Ayub said the sentences “against PTI detainees are repugnant to the norms of justice”.
“Military court sentences against civilians rejected!!!” Ayub wrote on X.
“The detainees are civilians and cannot be tried by military courts,” he asserted, calling the courts “kangaroo courts”.
“Military courts cannot lawfully share the judicial power of the state because the armed forces are part of the executive authority of state and the creation of such courts to try civilians for ordinary civil offences ‘not only militates against the independence of judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution’,” the PTI leader said, citing SC’s verdict in the 1999 Sheikh Liaquat Hussain case.
Meanwhile, a post on Imran’s official X account — which the incarcerated ex-premier does not personally have access to — reiterated the PTI’s allegation that the May 9 events were an “organised” conspiracy against him and his party.
The post added, “Punishing innocent citizens by acting as judge, jury, and executioner through a military trial, after staging May 9 false flag operation themselves, is a blatant violation of human rights.”
It called on international organisations to take notice of the “miscarriage of justice committed in the name of military trials”.
Senior PTI leader Taimur Khan Jhagra said: “No one is going to accept these trials as fair. And those defending them will also be doing so out of compulsion.”
He noted there was “no visibility of these trials”, adding, “with the pressure being exerted on the conventional judiciary today, these sentences and the accompanying campaign on TV belong to some Sacha Baron Cohen movie”.
The PTI’s United States chapter said on X that “colonels and majors, acting as judges, have sentenced civilians it tried in military courts”.
“These civilians were held for over a year in harsh conditions, with many tortured into giving false confessions,” it alleged.
On the other hand, Defence Minister Khawaja Asif said on X that the “delay in the sentencing had boosted the morale of the accused and their facilitators”.
Claiming that the convictions were only for those “used” in the riots, the PML-N leader said the matter “would not end until the law reached those who were the planners of this terrible day”.
“The enemies of the country will continue to boost the morale of such elements,” Asif added.
Information Minister Attaullah Tarar criticised Imran for inserting “division and hatred into politics”.
“Those who did political terrorism, under the guise of politics, today they have been brought to their logical conclusion,” he said, speaking at an event in Lahore.
“It has been proved that the mastermind of May 9 was the PTI founder,” Tarar claimed. “No one from those who worked against this country’s well-being will be let go.”
“Political differences are raised through arguments,” the minister stressed. “All these [convicted] people are those who strengthened the enemy by attacking military installations,” he asserted.
In a post on X, Tarar said the sentences had “not only established the rule of law but also set an example for the future so that no one dares to do such a despicable act”.
“This is a clear message to state enemies,” the information minister stated, sharing the video released by ISPR of the convicts’ details.
Lawyers concerned, hope for fair trials
Commenting on today’s development, Barrister Asad Rahim said: “We have entered uncharted territory, where what is left of our Supreme Court is allowing a system of laws to be imposed without any state of exception or emergency.”
“Pakistan’s constitutional order will greatly suffer for this,” he remarked.
He termed the Oct 23, 2023 original decision as a “landmark verdict, uphold as it did the principle that civilians are to be tried by civilian courts”.
“What we have now is its reverse: the first and so far only significant gift of this new constitutional bench has been to upend that consensus,” Rahim lamented.
Lawyer Basil Nabi Malik said military trials were an “an abomination for any country that prides itself on being a federal polity with democratic credentials”.
“The proceeding of such trials, along with the lethargy of the Supreme Court in actually deciding the matter conclusively, indicates that Pakistan is leaning towards being a democracy in name only as opposed to being one in practice,” Malik told Dawn.com.
“This should be worrying for all concerned, not least of all the political parties who claim to be champions of democracy and the people’s rights,” he added.
Barrister Rida Hosain pointed out that so far, “not a single civilian in custody has been acquitted by the military courts”.
Noting that prior to today’s 25 sentences, judgments for 20 people had been announced in April, she said, “The disproportionately high conviction rate in military courts reinforces the unfairness of the proceedings.”
On the ISPR stating that the convicts “retain the right to appeal and other legal recourses”, Hosain said, “There is no independent right of appeal against decisions of military courts. A right to appeal lies within the military system.
“However, the high courts may review the decisions handed down by military courts on very limited grounds such as lack of jurisdiction, mala fide etc,” she added.
Regretting that constitutional bench’s decision last week, she said the “appellate bench has allowed an unconstitutional process to continue without a decision on the merits”.
Barrister Yasser Latif Hamdani hoped that the sentences could be appealed so that the right of fair trial under Article 10A of the Constitution was protected by judicial oversight.
Hamdani noted: “There is no cavil with the proposition that those responsible for violence and rioting on May 9, 2023 should be held accountable.”
However, he added the right to fair trial was a fundamental right under the Constitution and expressed the hope “that the military court procedure can be held up against that right”.
Lawyer Mirza Moiz Baig said the convictions “once again engenders concerns about due process”.
“While the civilians sentenced today may, in fact, have been involved in the acts of May 9, 2023, our democratic dispensation rests on giving even those accused of heinous crimes the right to a fair trial,” he noted, emphasising that the “commitment to uphold such principles when dealing with the most violent crimes is really what distinguishes democratic dispensations from oppressive ones”.
Advocate Ahmad Maudood Ausaf said the Pakistan Army Act of 1952 was “never meant to drag civilians into its fold”.
He noted: “Justice Ayesha Malik, in her initial judgment, flagged the glaring lack of impartiality and independence in military trials — a critique hard to ignore when you consider the sky-high conviction rates that make the entire process look less like justice and more like a rubber-stamp factory.”
Also mentioning the 26th Amendment, under which the constitutional bench hearing the case currently was formed, Ausaf said, “It’s difficult to say whether such a development would have been possible under the pre-amendment status quo.
“Would the outcome have been the same if constitutional cases weren’t left to a select few? One can only speculate. The amendment undeniably set the stage, doubling as both a trigger and a catalyst.”
However, he noted that the right to appeal “still stands, offering a glimmer of hope through the high court and, eventually, the Supreme Court. The path ahead is unclear, but this story is far from over.”
Military courts have sentenced 25 civilians to prison terms ranging from two to 10 years for their involvement in violent attacks on military installations during nationwide riots on May 9, 2023, according to a statement issued by the Inter-Services Public Relations (ISPR) on Saturday.
The development comes over a week after the Supreme Court’s constitutional bench conditionally allowed military courts to pronounce the verdicts of 85 under-custody civilians in cases pertaining to the May 9 riots.
What we know so far:Punishments range from 2-10 years, with 14 of 25 given maximum sentences
All convicts retain right to appeal and other legal recourses, military says
PTI ‘rejects’ sentences
Ministers hail verdicts, with Asif calling for ‘planners’ to be punished
Lawyers concerned if due process followed, hope for fair trials
Following today’s announcement, persons who can be released after remissions can “be released forthwith and the persons who have to yet undergo the sentence awarded to them, their custody” will be handed over to the “concerned jail authorities”, as per the SC order.
The bench had ordered that the announcement of judgements would be subject to a final determination of the appeals before the SC, and without prejudice to the rights of those 85 accused persons.
During the December 13 hearing, Additional Attorney General Amir Rehman had assured the court that the prisoners would be dealt in accordance with the jail manual. However, the bench did not agree when the counsel for the petitioners requested the SC that the prisoners be placed under the custody of a civilian court.
Following the arrest of the ex-premier on May 9, 2023, from the Islamabad High Court’s premises by paramilitary forces, riots erupted across the country that went on for at least 24 hours.
The convictions announced today primarily relate to attacks on several key military sites, including Jinnah House, General Headquarters (GHQ) in Rawalpindi, and Pakistan Air Force (PAF) Base Mianwali.
In its statement today, the military said, “In light of the Supreme Court decision, Field General Court Martial (FGCM) have in first phase promulgated the punishments to following 25 accused; after examining all evidence, affording all legal rights to the accused and completion of due process.”
In this first phase of sentencing, the military courts have handed down punishments ranging from two to 10 years of rigorous imprisonment.
“All convicts retain the right to appeal and other legal recourses, as guaranteed by the law and the Constitution,” the ISPR said.
It further said that “promulgation of the sentences of remaining accused is also being done and will be announced shortly as and when the due process is complete”.
The ISPR also released a video showing the convicts and their deeds for which they had been sentenced.
The military said the events of May 9, 2023 were “politically provoked violence and arson at multiple places, marking a dark chapter in the history of Pakistan”.
“Building on a sustained narrative of hate and lies, politically orchestrated attacks were carried out on the installations of the armed forces including desecration of the monuments of shuhada,” the military said.
“These blatant acts of violence not only shocked the nation but also underscored [the] necessity of checking this unacceptable attempt of political terrorism to impose own perverted will through violence and coercion,” the statement added.
It noted that on Dec 13, 2024, a “seven-member constitutional bench of the Supreme Court of Pakistan directed that the cases pending due to an earlier order of the Supreme Court be finalised and judgements in the cases of those accused found involved in these violent incidents be announced”.
The ISPR statement read: “Sequel to the events of this ‘Black Day’, through meticulous investigations, irrefutable evidences were collected to legally prosecute the accused involved in the 9th May tragedy.
“Certain cases were subsequently referred for Field General Court Martial (FGCM) as per law, where they underwent trials following due process,” it added.
“This is an important milestone in dispensation of justice to the nation,” the military asserted.
It continued: “It is also a stark reminder to all those who are exploited by the vested interests and fall prey to their political propaganda and intoxicating lies, to never take law in own hands ever in the future.”
The ISPR noted: “Many accused are also being tried in various Anti-Terrorist Courts and their cases are being pursued as per the law, however, justice would truly be fully served once the mastermind and planners of 9th May Tragedy are punished as per the Constitution and laws of the land.
“State of Pakistan will continue to [vigorously] pursue dispensation of justice to ensure establishment of inviolable writ of the state, so as to uproot this evil of violence driven disruptive and destructive politics based on hate, divisiveness and baseless propaganda,” the military vowed.
At least 10 people lost their lives and hundreds sustained injuries, while approximately 40 public buildings and military installations were damaged, including Lahore Corps Commander’s House (Jinnah House) and Askari Tower in Lahore, General Headquarters (GHQ) in Rawalpindi, Inter-Services Intelligence (ISI) Office in Faisalabad, FC Fort in Chakdara, Radio Pakistan building in Peshawar, Toll Plaza at Swat Motorway and the PAF Base Mianwali.
In total, 62 outbreaks of violence were documented, inflicting a loss of Rs2.5 billion on the country, of which, according to the state, Rs1.98bn in losses were suffered by the army. The military says the events were a coordinated attack by the PTI leadership.
In its widely praised verdict, a five-member bench on Oct 13, 2023 had unanimously declared the military trials of 103 civilians null and void.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
However, on December 13 last year, in a 5-1 majority verdict, the SC conditionally suspended its own Oct 23 ruling — albeit by a different bench — pending a final judgement as it heard a set of intra-court appeals (ICAs).
Earlier in March, a six-member SC bench had also conditionally allowed military courts to pronounce reserved verdicts in the cases. It had also modified its Dec 13 injunction, ordering that military courts could commence trials but they would not convict or acquit any suspect until the pendency of government-instituted ICAs.
Punishments range from 2-10 years
Ten-year sentences were handed down to 14 of the 25 persons convicted, with one each given nine-year, seven-year, and three-year terms; six years to two; four years to another two; and two years to four.
Out of the total convictions, 11 were linked to the attacks on Jinnah House; five to Punjab Regimental Centre Mardan; two each to GHQ, PAF Base Mianwali and Multan Cantt Check Post; and one each to Chakdara Fort, ISI Office Faisalabad incident, and Bannu Cantt.
Among those receiving maximum sentences are Jan Muhammad Khan and Muhammad Imran Mehboob for the Jinnah House attack, Raja Muhammad Ehsan for the GHQ incident, and Anwar Khan for involvement in the PAF Base Mianwali attack.
According to the press release, the following 25 people were handed down the sentences:Jan Muhammad Khan — involved in Jinnah House incident (10 years)
Muhammad Imran Mehboob — involved in Jinnah House incident (10 years)
Raja Muhammad Ehsan — involved in GHQ attack incident (10 years)
Rehmat Ullah — involved in Punjab Regimental Centre Mardan incident (10 years)
Ali Iftikhar — involved in Jinnah House incident (10 years)
Zia ur Rehman — involved in Jinnah House incident (10 years)
Adnan Ahmed — involved in Punjab Regimental Centre Mardan incident (10 years)
Shakir Ullah — involved in Punjab Regimental Centre Mardan incident (10 years)
Anwar Khan — involved in PAF Base Mianwali incident (10 years)
Abdul Hadi — involved in Jinnah House incident (10 years)
Ali Shan — involved in Jinnah House incident (10 years)
Daud Khan — involved in Jinnah House incident (10 years)
Umar Farooq — involved in GHQ attack incident (10 years)
Babar Jamal — involved in PAF Base Mianwali incident (10 years)
Muhammad Afaq Khan — involved in Bannu Cantt incident (nine years)
Daud Khan — involved in Chakdara Fort incident (seven years)
Faheem Haider — involved in Jinnah House incident (six years)
Muhammad Hashir Khan — involved in Jinnah House incident (six years)
Zahid Khan — involved in Multan Cantt Check Post incident (four years)
Muhammad Ashiq Khan — involved in Jinnah House incident (four years)
Khuram Shahzad — involved in Multan Cantt Check Post incident (three years)
Muhammad Bilawal — involved in Jinnah House incident (two years)
Said Alam — involved in Punjab Regimental Centre Mardan incident (two years)
Laeeq Ahmed — involved in ISI Office Faisalabad incident (two years)
Yasir Nawaz — involved in Punjab Regimental Centre Mardan incident (two years)
PTI ‘rejects’ sentences, ministers want ‘planners’ punished
Following the announcement, Opposition Leader in the National Assembly Omar Ayub said the sentences “against PTI detainees are repugnant to the norms of justice”.
“Military court sentences against civilians rejected!!!” Ayub wrote on X.
“The detainees are civilians and cannot be tried by military courts,” he asserted, calling the courts “kangaroo courts”.
“Military courts cannot lawfully share the judicial power of the state because the armed forces are part of the executive authority of state and the creation of such courts to try civilians for ordinary civil offences ‘not only militates against the independence of judiciary but it also negates the principle of trichotomy of power which is the basic feature of the Constitution’,” the PTI leader said, citing SC’s verdict in the 1999 Sheikh Liaquat Hussain case.
Meanwhile, a post on Imran’s official X account — which the incarcerated ex-premier does not personally have access to — reiterated the PTI’s allegation that the May 9 events were an “organised” conspiracy against him and his party.
The post added, “Punishing innocent citizens by acting as judge, jury, and executioner through a military trial, after staging May 9 false flag operation themselves, is a blatant violation of human rights.”
It called on international organisations to take notice of the “miscarriage of justice committed in the name of military trials”.
Senior PTI leader Taimur Khan Jhagra said: “No one is going to accept these trials as fair. And those defending them will also be doing so out of compulsion.”
He noted there was “no visibility of these trials”, adding, “with the pressure being exerted on the conventional judiciary today, these sentences and the accompanying campaign on TV belong to some Sacha Baron Cohen movie”.
The PTI’s United States chapter said on X that “colonels and majors, acting as judges, have sentenced civilians it tried in military courts”.
“These civilians were held for over a year in harsh conditions, with many tortured into giving false confessions,” it alleged.
On the other hand, Defence Minister Khawaja Asif said on X that the “delay in the sentencing had boosted the morale of the accused and their facilitators”.
Claiming that the convictions were only for those “used” in the riots, the PML-N leader said the matter “would not end until the law reached those who were the planners of this terrible day”.
“The enemies of the country will continue to boost the morale of such elements,” Asif added.
Information Minister Attaullah Tarar criticised Imran for inserting “division and hatred into politics”.
“Those who did political terrorism, under the guise of politics, today they have been brought to their logical conclusion,” he said, speaking at an event in Lahore.
“It has been proved that the mastermind of May 9 was the PTI founder,” Tarar claimed. “No one from those who worked against this country’s well-being will be let go.”
“Political differences are raised through arguments,” the minister stressed. “All these [convicted] people are those who strengthened the enemy by attacking military installations,” he asserted.
In a post on X, Tarar said the sentences had “not only established the rule of law but also set an example for the future so that no one dares to do such a despicable act”.
“This is a clear message to state enemies,” the information minister stated, sharing the video released by ISPR of the convicts’ details.
Lawyers concerned, hope for fair trials
Commenting on today’s development, Barrister Asad Rahim said: “We have entered uncharted territory, where what is left of our Supreme Court is allowing a system of laws to be imposed without any state of exception or emergency.”
“Pakistan’s constitutional order will greatly suffer for this,” he remarked.
He termed the Oct 23, 2023 original decision as a “landmark verdict, uphold as it did the principle that civilians are to be tried by civilian courts”.
“What we have now is its reverse: the first and so far only significant gift of this new constitutional bench has been to upend that consensus,” Rahim lamented.
Lawyer Basil Nabi Malik said military trials were an “an abomination for any country that prides itself on being a federal polity with democratic credentials”.
“The proceeding of such trials, along with the lethargy of the Supreme Court in actually deciding the matter conclusively, indicates that Pakistan is leaning towards being a democracy in name only as opposed to being one in practice,” Malik told Dawn.com.
“This should be worrying for all concerned, not least of all the political parties who claim to be champions of democracy and the people’s rights,” he added.
Barrister Rida Hosain pointed out that so far, “not a single civilian in custody has been acquitted by the military courts”.
Noting that prior to today’s 25 sentences, judgments for 20 people had been announced in April, she said, “The disproportionately high conviction rate in military courts reinforces the unfairness of the proceedings.”
On the ISPR stating that the convicts “retain the right to appeal and other legal recourses”, Hosain said, “There is no independent right of appeal against decisions of military courts. A right to appeal lies within the military system.
“However, the high courts may review the decisions handed down by military courts on very limited grounds such as lack of jurisdiction, mala fide etc,” she added.
Regretting that constitutional bench’s decision last week, she said the “appellate bench has allowed an unconstitutional process to continue without a decision on the merits”.
Barrister Yasser Latif Hamdani hoped that the sentences could be appealed so that the right of fair trial under Article 10A of the Constitution was protected by judicial oversight.
Hamdani noted: “There is no cavil with the proposition that those responsible for violence and rioting on May 9, 2023 should be held accountable.”
However, he added the right to fair trial was a fundamental right under the Constitution and expressed the hope “that the military court procedure can be held up against that right”.
Lawyer Mirza Moiz Baig said the convictions “once again engenders concerns about due process”.
“While the civilians sentenced today may, in fact, have been involved in the acts of May 9, 2023, our democratic dispensation rests on giving even those accused of heinous crimes the right to a fair trial,” he noted, emphasising that the “commitment to uphold such principles when dealing with the most violent crimes is really what distinguishes democratic dispensations from oppressive ones”.
Advocate Ahmad Maudood Ausaf said the Pakistan Army Act of 1952 was “never meant to drag civilians into its fold”.
He noted: “Justice Ayesha Malik, in her initial judgment, flagged the glaring lack of impartiality and independence in military trials — a critique hard to ignore when you consider the sky-high conviction rates that make the entire process look less like justice and more like a rubber-stamp factory.”
Also mentioning the 26th Amendment, under which the constitutional bench hearing the case currently was formed, Ausaf said, “It’s difficult to say whether such a development would have been possible under the pre-amendment status quo.
“Would the outcome have been the same if constitutional cases weren’t left to a select few? One can only speculate. The amendment undeniably set the stage, doubling as both a trigger and a catalyst.”
However, he noted that the right to appeal “still stands, offering a glimmer of hope through the high court and, eventually, the Supreme Court. The path ahead is unclear, but this story is far from over.”
Military convictions
DAWN
Editorial
Editorial
December 22, 2024
THE sentencing of 25 civilians by military courts for their involvement in the May 9, 2023, riots raises questions about justice and due process in Pakistan.
While the ISPR statement says these convictions represent “an important milestone in dispensation of justice”, a closer examination reveals certain gaps, including the question of jurisdiction.
The Official Secrets Act, which was invoked for conducting these trials, primarily deals with espionage and unauthorised disclosure of classified information. The act of attacking military installations or Jinnah House, though undoubtedly reprehensible, does not naturally fall within the OSA’s ambit. Instead, the Anti-Terrorism Act and Pakistan Penal Code are applicable to acts of violence. It has not been explained how these specific cases, some resulting in sentences as light as two years, warranted military trials while hundreds of similar cases proceed in anti-terrorism courts.
According to ISPR, “all legal rights” were afforded to the accused. However, this appears inconsistent when examined against the basic principles of due process. Can serving officers, bound by military hierarchy, truly provide independent judgements? The one-line descriptions of convictions accompanying the names of the 25 individuals hardly qualify as reasoned judgements.
Moreover, the stance that convicts “retain the right to appeal” overlooks a crucial fact: appeals from FCGM lie with military appellate courts and ultimately the army chief, not the civilian courts that can only review these cases on limited grounds like mala fide or lack of jurisdiction and without the power to reassess evidence or findings of guilt.
This newspaper has consistently opposed military trials of civilians as fundamentally incompatible with democratic principles. The Supreme Court’s landmark October verdict declaring such trials unconstitutional reflected this position. While that verdict stands unoverturned on appeal, the constitutional bench has allowed the military courts to announce decisions, creating troubling legal uncertainty.
The fundamental questions about trying civilians in military courts and whether the May 9 incidents fall under military jurisdiction remain undecided, casting a long shadow over these convictions’ legitimacy.
The gravity of the May 9 incidents is not in question. Those responsible for attacking military installations must face justice. And the people deserve the truth regarding the riots. This can only be accomplished with transparent, fair trials in civilian courts. Secret military trials of select accused, conducted under questionable jurisdiction and with opaque appeal rights, makes the exercise appear more about reprisal than justice. That such trials are occurring under civilian leadership adds a layer of irony to this distressing situation.
Pakistan’s democracy, still finding its feet, cannot afford such compromises on core democratic values. The Supreme Court must now demonstrate the judicial leadership the moment demands by definitively settling these fundamental questions about military trials of civilians. Pakistan’s democratic future depends on it.
Published in Dawn, December 22nd, 2024
SC’s order green lights military courts, detrimental to civilian rights, lawyers warn
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.
‘Order dilutes the issue without deciding it’
According to lawyer Abdul Moiz Jaferii, “the 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 — those that support the underlying judgment as well as those who are against it.”
Jaferii argued that the delay has compounded an already complex matter for the constitutional bench. “The government has repeatedly made clear that the stay order against the judgment 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,” he explained.
In his opinion, what has happened is “that the Supreme Court is trying to correct for that delay by allowing these trials to culminate.”
However, he described the court’s decision as an inadequate fix. “This 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.” For Jaferii, a simpler, fairer approach would have been to release these civilians on bail while deliberations on the legality of their trials continued.
A ‘disastrous’ amendment
Barrister Asad Rahim Khan framed the verdict as a grim milestone for Pakistan’s judiciary. “The 26th amendment has achieved its purpose. The post-restoration judiciary is now a thing of the past,” he remarked.
“In passing this order, the judges join the ranks of the bureaucracy, the parliament, the press, and the executive, all united in a straight line,” he stated, highlighting the broader institutional alignment the decision reflects.
“This 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), emergency rule (FB Ali vs Federation), or specific amendments during insurgency (District Bar Association, Rawalpindi vs Federation). What the ‘constitutional bench’ actually thinks about the Constitution it’s meant to protect is clear from this order,” he commented.
For him, the path forward is unequivocal: “There can be no way back from our current crisis until the challenge to this disastrous amendment is heard.”
‘Sad consequence of the infamous 26th Amendment’
In a similar vein, lawyer Basil Nabi Malik expressed grave concerns over the SC’s decision, pointing out its departure from earlier rulings. “The 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,” he lamented.
Malik emphasised the constitutional stakes at hand: “The 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.”
“It 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’s 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,” he said, criticising the delays in resolving the matter.
‘Integrity of judicial decisions’ under question
Lawyer Mirza Moiz Baig, too, voiced alarm over the apex court’s decision to permit military courts to pronounce verdicts conditionally, linking it to deeper concerns about judicial independence. “Allowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the independence of the judiciary after the 26th Constitutional Amendment,” he stated.
He underscored the contradictions between last year’s ruling and today’s decision, stating that “given 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’ right to fair trial and due process.”
A legal loophole
Justice (retd) Shaiq Usmani, speaking to DawnNewsTV, addressed the implications of the SC’s ruling, noting that while military court orders are appealable in the high court, this development marks a significant shift. “Until now it was being said that military courts have no right to carry out civilian trials,” he remarked.
Describing the impact on political dynamics, he added, “this is a significant development and it is a setback for the PTI.”
“In 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.” However, he acknowledged a legal provision in the Pakistan Army Act which says that “if anyone does something which damages the military installation, under that condition, the military court can carry out their (civilian) trial.”
‘Erosion of constitutional guarantees’
Lawyer Yasser Hamdani reflected on the complexity of the situation, stating that “the events of May 9 2023 were extraordinary — 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.”
He expressed his ambivalence about the current development, saying, “I’m 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’m not convinced that a civilian should be tried under the Army Act,” he concluded.
Myths about ‘military justice’
Reema Omer
THE sentencing of 25 civilians by military courts for their involvement in the May 9, 2023, riots raises questions about justice and due process in Pakistan.
While the ISPR statement says these convictions represent “an important milestone in dispensation of justice”, a closer examination reveals certain gaps, including the question of jurisdiction.
The Official Secrets Act, which was invoked for conducting these trials, primarily deals with espionage and unauthorised disclosure of classified information. The act of attacking military installations or Jinnah House, though undoubtedly reprehensible, does not naturally fall within the OSA’s ambit. Instead, the Anti-Terrorism Act and Pakistan Penal Code are applicable to acts of violence. It has not been explained how these specific cases, some resulting in sentences as light as two years, warranted military trials while hundreds of similar cases proceed in anti-terrorism courts.
According to ISPR, “all legal rights” were afforded to the accused. However, this appears inconsistent when examined against the basic principles of due process. Can serving officers, bound by military hierarchy, truly provide independent judgements? The one-line descriptions of convictions accompanying the names of the 25 individuals hardly qualify as reasoned judgements.
Moreover, the stance that convicts “retain the right to appeal” overlooks a crucial fact: appeals from FCGM lie with military appellate courts and ultimately the army chief, not the civilian courts that can only review these cases on limited grounds like mala fide or lack of jurisdiction and without the power to reassess evidence or findings of guilt.
This newspaper has consistently opposed military trials of civilians as fundamentally incompatible with democratic principles. The Supreme Court’s landmark October verdict declaring such trials unconstitutional reflected this position. While that verdict stands unoverturned on appeal, the constitutional bench has allowed the military courts to announce decisions, creating troubling legal uncertainty.
The fundamental questions about trying civilians in military courts and whether the May 9 incidents fall under military jurisdiction remain undecided, casting a long shadow over these convictions’ legitimacy.
The gravity of the May 9 incidents is not in question. Those responsible for attacking military installations must face justice. And the people deserve the truth regarding the riots. This can only be accomplished with transparent, fair trials in civilian courts. Secret military trials of select accused, conducted under questionable jurisdiction and with opaque appeal rights, makes the exercise appear more about reprisal than justice. That such trials are occurring under civilian leadership adds a layer of irony to this distressing situation.
Pakistan’s democracy, still finding its feet, cannot afford such compromises on core democratic values. The Supreme Court must now demonstrate the judicial leadership the moment demands by definitively settling these fundamental questions about military trials of civilians. Pakistan’s democratic future depends on it.
Published in Dawn, December 22nd, 2024
SC’s order green lights military courts, detrimental to civilian rights, lawyers warn
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.
December 13, 2024
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 their alleged involvement in last year’s May 9 riots.
The development came as a seven-judge bench resumed hearing a case pertaining to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots.
Announcing the directives on Friday, Justice Aminuddin Khan, who is heading the constitutional bench, said: “Suspects who can be accorded concessions in their sentences, should be given so and released.
“Suspects who cannot be released should be moved to jails once their sentence has been pronounced,” he ordered.
The contentious decision has sparked a debate among legal circles, raising concerns about whether it marks a retreat from last year’s widely praised ruling that military trials for civilians violated the Constitution.
To unpack the ramifications for the accused and Pakistan’s constitutional framework alike, we sought insights from lawyers.
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 their alleged involvement in last year’s May 9 riots.
The development came as a seven-judge bench resumed hearing a case pertaining to the trial of more than 100 civilians for their alleged role in attacks on army installations during the riots.
Announcing the directives on Friday, Justice Aminuddin Khan, who is heading the constitutional bench, said: “Suspects who can be accorded concessions in their sentences, should be given so and released.
“Suspects who cannot be released should be moved to jails once their sentence has been pronounced,” he ordered.
The contentious decision has sparked a debate among legal circles, raising concerns about whether it marks a retreat from last year’s widely praised ruling that military trials for civilians violated the Constitution.
To unpack the ramifications for the accused and Pakistan’s constitutional framework alike, we sought insights from lawyers.
‘Order dilutes the issue without deciding it’
According to lawyer Abdul Moiz Jaferii, “the 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 — those that support the underlying judgment as well as those who are against it.”
Jaferii argued that the delay has compounded an already complex matter for the constitutional bench. “The government has repeatedly made clear that the stay order against the judgment 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,” he explained.
In his opinion, what has happened is “that the Supreme Court is trying to correct for that delay by allowing these trials to culminate.”
However, he described the court’s decision as an inadequate fix. “This 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.” For Jaferii, a simpler, fairer approach would have been to release these civilians on bail while deliberations on the legality of their trials continued.
A ‘disastrous’ amendment
Barrister Asad Rahim Khan framed the verdict as a grim milestone for Pakistan’s judiciary. “The 26th amendment has achieved its purpose. The post-restoration judiciary is now a thing of the past,” he remarked.
“In passing this order, the judges join the ranks of the bureaucracy, the parliament, the press, and the executive, all united in a straight line,” he stated, highlighting the broader institutional alignment the decision reflects.
“This 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), emergency rule (FB Ali vs Federation), or specific amendments during insurgency (District Bar Association, Rawalpindi vs Federation). What the ‘constitutional bench’ actually thinks about the Constitution it’s meant to protect is clear from this order,” he commented.
For him, the path forward is unequivocal: “There can be no way back from our current crisis until the challenge to this disastrous amendment is heard.”
‘Sad consequence of the infamous 26th Amendment’
In a similar vein, lawyer Basil Nabi Malik expressed grave concerns over the SC’s decision, pointing out its departure from earlier rulings. “The 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,” he lamented.
Malik emphasised the constitutional stakes at hand: “The 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.”
“It 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’s 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,” he said, criticising the delays in resolving the matter.
‘Integrity of judicial decisions’ under question
Lawyer Mirza Moiz Baig, too, voiced alarm over the apex court’s decision to permit military courts to pronounce verdicts conditionally, linking it to deeper concerns about judicial independence. “Allowing military courts to pronounce decisions, albeit conditionally, raises renewed concerns about the independence of the judiciary after the 26th Constitutional Amendment,” he stated.
He underscored the contradictions between last year’s ruling and today’s decision, stating that “given 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’ right to fair trial and due process.”
A legal loophole
Justice (retd) Shaiq Usmani, speaking to DawnNewsTV, addressed the implications of the SC’s ruling, noting that while military court orders are appealable in the high court, this development marks a significant shift. “Until now it was being said that military courts have no right to carry out civilian trials,” he remarked.
Describing the impact on political dynamics, he added, “this is a significant development and it is a setback for the PTI.”
“In 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.” However, he acknowledged a legal provision in the Pakistan Army Act which says that “if anyone does something which damages the military installation, under that condition, the military court can carry out their (civilian) trial.”
‘Erosion of constitutional guarantees’
Lawyer Yasser Hamdani reflected on the complexity of the situation, stating that “the events of May 9 2023 were extraordinary — 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.”
He expressed his ambivalence about the current development, saying, “I’m 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’m not convinced that a civilian should be tried under the Army Act,” he concluded.
Myths about ‘military justice’
Reema Omer
November 20, 2023
DAWN
The writer is a legal adviser for the International Commission of Jurists.
Originally published on Nov 20, 2023.
ON Oct 23, 2023, the Supreme Court delivered a landmark ruling. In a short order, detailed reasons for which have not yet been published, the SC held provisions of the Army Act, 1952, which brought civilians under its ambit and provided for their trial by courts martial, were ultra vires the Constitution and of no legal effect.
In addition, the SC held instead of military courts, regular criminal courts of competent jurisdiction shall conduct trials of those accused of committing crimes on May 9 and 10, 2023.
The order should have been unanimously celebrated as a victory for the rule of law, the independence of the judiciary, and human rights in the country.
Yet, on our television screens and on social media, we saw a mixed response. Some notable lawyers, journalists, and politicians expressed horror at the order, and condemned it for jeopardising Pakistan’s security.
It is incorrect to suggest the Supreme Court has given a ‘lenient’ option to ‘terrorists and anti-state actors’.
Also, fewer than a dozen senators passed a bizarre ‘resolution’ — despite lack of quorum — suggesting the SC had “rewritten” the Constitution through its judgement. The “resolution” stated the SC had abandoned “the spirit of martyrdom” and had granted a “lenient option to terrorists, anti-state actors, foreign agents, and spies to be tried in normal courts”.
At best, such support of military trials of civilians and denunciations of the SC order show ignorance of the relevant legal framework and jurisprudence. At worst, they are bad faith attempts at misleading the public and further empowering the security establishment at the expense of the rights of the people of Pakistan.
Four myths regarding ‘military justice’ are particularly misleading.
First, the claim that military courts’ procedures meet fair trial standards is false for a number of reasons. The foremost is that military court judges are military officers who are a part of the executive branch and do not enjoy independence from the military hierarchy. This fundamentally negates the right to a fair trial, which requires trial by a competent, independent, and impartial court, as well as Article 175 of the Constitution, which guarantees the separation of the judiciary from the executive.
Second, Article 8 of the Constitution expressly provides any law inconsistent with fundamental rights shall, to the extent of such inconsistency, be void. The SC and high courts have the jurisdiction to review legislation — be it new or old — and declare it inconsistent with fundamental rights. This does not mean the courts are ‘rewriting’ the Constitution — it is the courts’ foremost duty to assess the compatibility of legislation with human rights guarantees.
Third, it is incorrect to suggest the SC has given a “lenient” option to “terrorists and anti-state actors” through its judgement.
It is important to note provisions of the Army Act declared ultra vires by the SC permitted the trial of civilians by military courts in only those situations where civilians were accused of “seducing or attempting to seduce” army officers from their duty or of committing certain offences under the Official Secrets Act, 1923, related to the military.
Even before the SC judgement, therefore, regular criminal courts and anti-terrorism courts had the jurisdiction to conduct trials of people accused of offences such as terrorism and attacking military officers or installations.
In fact, the situation was so absurd that a person accused of a terror attack targeting a school and killing dozens of children came under the jurisdiction of anti-terrorism courts. But courts martial were permitted to try civilians who were accused of being in the vicinity of a military installation without authorisation.
Surely, if courts in the regular criminal justice system are competent enough to conduct the trial of civilians accused of the most serious offences such as terrorism and hold perpetrators responsible, they are also competent to conduct trials of those who are accused of committing offences such as those under the Official Secrets Act.
This by no means is a justification for the abject failures of our criminal justice system, which is beyond doubt in a dismal state. However, what is required is the correct diagnosis of the reasons for this and bringing about meaningful reform — not handing the justice system to the military.
Finally, the claim that larger benches of the SC have repeatedly found military trials of civilians constitutional is also deceptive.
The SC has considered the constitutionality of the trial of civilians by courts martial on a few occasions, but the relevant constitutional framework and the issues being considered by the court at that time were different.
Most of these judgements, notably that of the ‘F.B. Ali’ case, were delivered before 2010, when Article 10A — the right to a fair trial — was not a part of the Constitution’s fundamental rights chapter. One important judgement, ‘District Bar Association’, was delivered after 2010, but is distinguishable from the issues before the SC in the current case.
In ‘District Bar Association’, an SC full-court bench decided petitions challenging the 21st Amendment to the Constitution and the corresponding amendments to the Army Act. By a majority, the SC held individuals who claim to, or are known to belong to “any terrorist group or organisation using the name of religion or a sect” constituted a valid classification allowing for differential treatment under the Constitution, and as a result, could be tried by military courts. These constitutional amendments lapsed in 2019 and are no longer in force. Notably, the provisions of the Army Act struck down by the SC did not enjoy such constitutional cover.
As the caretaker governments appeal the SC judgement, it should be clear that the question of permitting military trials of civilians lies at the heart of our constitutional and democratic order. If we are going to justify, legitimise, and glorify military officers holding such trials in secret proceedings, instead of seeing this as an affront to our fundamental freedoms, we might as well give up the pretence of democracy, separation of powers, and civilian rule altogether.
reema.omer@icj.org
Twitter: @reema_omer
Published in Dawn, November 20th, 2023
Originally published on Nov 20, 2023.
ON Oct 23, 2023, the Supreme Court delivered a landmark ruling. In a short order, detailed reasons for which have not yet been published, the SC held provisions of the Army Act, 1952, which brought civilians under its ambit and provided for their trial by courts martial, were ultra vires the Constitution and of no legal effect.
In addition, the SC held instead of military courts, regular criminal courts of competent jurisdiction shall conduct trials of those accused of committing crimes on May 9 and 10, 2023.
The order should have been unanimously celebrated as a victory for the rule of law, the independence of the judiciary, and human rights in the country.
Yet, on our television screens and on social media, we saw a mixed response. Some notable lawyers, journalists, and politicians expressed horror at the order, and condemned it for jeopardising Pakistan’s security.
It is incorrect to suggest the Supreme Court has given a ‘lenient’ option to ‘terrorists and anti-state actors’.
Also, fewer than a dozen senators passed a bizarre ‘resolution’ — despite lack of quorum — suggesting the SC had “rewritten” the Constitution through its judgement. The “resolution” stated the SC had abandoned “the spirit of martyrdom” and had granted a “lenient option to terrorists, anti-state actors, foreign agents, and spies to be tried in normal courts”.
At best, such support of military trials of civilians and denunciations of the SC order show ignorance of the relevant legal framework and jurisprudence. At worst, they are bad faith attempts at misleading the public and further empowering the security establishment at the expense of the rights of the people of Pakistan.
Four myths regarding ‘military justice’ are particularly misleading.
First, the claim that military courts’ procedures meet fair trial standards is false for a number of reasons. The foremost is that military court judges are military officers who are a part of the executive branch and do not enjoy independence from the military hierarchy. This fundamentally negates the right to a fair trial, which requires trial by a competent, independent, and impartial court, as well as Article 175 of the Constitution, which guarantees the separation of the judiciary from the executive.
Second, Article 8 of the Constitution expressly provides any law inconsistent with fundamental rights shall, to the extent of such inconsistency, be void. The SC and high courts have the jurisdiction to review legislation — be it new or old — and declare it inconsistent with fundamental rights. This does not mean the courts are ‘rewriting’ the Constitution — it is the courts’ foremost duty to assess the compatibility of legislation with human rights guarantees.
Third, it is incorrect to suggest the SC has given a “lenient” option to “terrorists and anti-state actors” through its judgement.
It is important to note provisions of the Army Act declared ultra vires by the SC permitted the trial of civilians by military courts in only those situations where civilians were accused of “seducing or attempting to seduce” army officers from their duty or of committing certain offences under the Official Secrets Act, 1923, related to the military.
Even before the SC judgement, therefore, regular criminal courts and anti-terrorism courts had the jurisdiction to conduct trials of people accused of offences such as terrorism and attacking military officers or installations.
In fact, the situation was so absurd that a person accused of a terror attack targeting a school and killing dozens of children came under the jurisdiction of anti-terrorism courts. But courts martial were permitted to try civilians who were accused of being in the vicinity of a military installation without authorisation.
Surely, if courts in the regular criminal justice system are competent enough to conduct the trial of civilians accused of the most serious offences such as terrorism and hold perpetrators responsible, they are also competent to conduct trials of those who are accused of committing offences such as those under the Official Secrets Act.
This by no means is a justification for the abject failures of our criminal justice system, which is beyond doubt in a dismal state. However, what is required is the correct diagnosis of the reasons for this and bringing about meaningful reform — not handing the justice system to the military.
Finally, the claim that larger benches of the SC have repeatedly found military trials of civilians constitutional is also deceptive.
The SC has considered the constitutionality of the trial of civilians by courts martial on a few occasions, but the relevant constitutional framework and the issues being considered by the court at that time were different.
Most of these judgements, notably that of the ‘F.B. Ali’ case, were delivered before 2010, when Article 10A — the right to a fair trial — was not a part of the Constitution’s fundamental rights chapter. One important judgement, ‘District Bar Association’, was delivered after 2010, but is distinguishable from the issues before the SC in the current case.
In ‘District Bar Association’, an SC full-court bench decided petitions challenging the 21st Amendment to the Constitution and the corresponding amendments to the Army Act. By a majority, the SC held individuals who claim to, or are known to belong to “any terrorist group or organisation using the name of religion or a sect” constituted a valid classification allowing for differential treatment under the Constitution, and as a result, could be tried by military courts. These constitutional amendments lapsed in 2019 and are no longer in force. Notably, the provisions of the Army Act struck down by the SC did not enjoy such constitutional cover.
As the caretaker governments appeal the SC judgement, it should be clear that the question of permitting military trials of civilians lies at the heart of our constitutional and democratic order. If we are going to justify, legitimise, and glorify military officers holding such trials in secret proceedings, instead of seeing this as an affront to our fundamental freedoms, we might as well give up the pretence of democracy, separation of powers, and civilian rule altogether.
reema.omer@icj.org
Twitter: @reema_omer
Published in Dawn, November 20th, 2023
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