Polls within 90 days no longer possible: CJP: SC annuls trials of civilians in military courts

In a unanimous verdict, a five-member bench of the Supreme Court on Monday 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. A 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 – issued the order on the petitions filed by the PTI chief and others. Four judges out of the five declared that Section 2(1)(d) of the Army Act and 59(4) (civil offences) are “ultra vires the Constitution and of no legal effect”. “Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons […] shall be tried by criminal courts of competent jurisdiction established under the ordinary and/or special law of the land in relation to such offences of which they may stand accused,” the short order read. The top court said the verdict is applicable to all those accused arrested in connection with the riots of May 9 and 10. The order further said that any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed – including but not limited to trial by court-martial – are and would be of no legal effect. Although the bench concluded that Section 2(D)(1) was in contradiction with the Constitution, Justice Yahya Afridi reserved his decision. The apex court had reserved the verdict earlier in the day after Attorney General of Pakistan (AGP) Mansoor Usman Awan completed his arguments, which centred around the domain and scope of the military courts to try the civilians under the Army Act. At the outset of the hearing, petitioner lawyer Salman Akram Raja told the bench that trials of civilians already commenced before the top court’s verdict in the matter. Responding to this, Justice Ahsan said the method of conducting proceedings of the case would be settled after Attorney General of Pakistan (AGP) Mansoor Usman Awan completed his arguments. Presenting his arguments, the AGP said he would explain to the court why a constitutional amendment was necessary to form military courts in 2015 to try the terrorists. Responding to Justice Ahsan’s query, AGP Awan said the accused who were tried in military courts were local as well as foreign nationals. He said the accused would be tried under Section 2 (1) (D) of the Official Secrets Act and a trial under the Army Act would fulfill all the requirements of a criminal case. “The trial of the May 9 accused will be held in line with the procedure of a criminal court,” the AGP said. The AGP said the 21st Amendment was passed because the terrorists did not fall in the ambit of the Army Act. “Amendment was necessary for the trial of terrorists [then] why amendment not required for the civilians? At the time of the 21st constitutional amendment, did the accused attack the army or installations?” inquired Justice Ahsan. AGP Awan replied that the 21st Amendment included a provision to try accused involved in attacking restricted areas. “How do civilians come under the ambit of the Army Act?” Justice Ahsan asked the AGP. Justice Malik asked AGP Awan to explain what Article 8 of the Constitution says. “According to Article 8, legislation against fundamental rights cannot be sustained,” the AGP responded. Justice Malik observed that the Army Act was enacted to establish discipline in the forces. “How can the law of discipline in the armed forces be applied to civilians?” she inquired. The AGP responded by saying that discipline of the forces is an internal matter while obstructing armed forces from discharging duties is a separate issue. He said any person facing the charges under the Army Act can be tried in military courts. “The laws you [AGP] are referring to are related to army discipline,” Justice Ahsan said. Justice Malik inquired whether the provision of fundamental rights be left to the will of Parliament. “The Constitution ensures the provision of fundamental rights at all costs,” she added. If the court opened this door then even a traffic signal violator will be deprived of his fundamental rights, Justice Malik said. The AGP told the bench that court-martial is not an established court under Article 175 of the Constitution. At this, Justice Ahsan said court martials are not under Article 175 but are courts established under the Constitution and Law. After hearing the arguments, the bench reserved the verdict on the petitions. Meanwhile, Chief Justice of Pakistan (CJP) Qazi Faez Isa on Monday observed that it was “not possible” to meet the 90-day deadline for holding elections and lamented the lack of preparations of the petitioners. The CJP passed the observation while hearing the petitions seeking timely elections within 90 days of the dissolution of the assemblies. The CJP is leading a three-member bench comprising himself, Justice Athar Minallah and Justice Amin-Ud-Din Khan on the matter. The pleas were filed by the Supreme Court Bar Association, Pakistan Tehreek-e-Insaf (PTI) and others to ensure that polls in the country are held within the stipulated time period. At the outset of the hearing, CJP Isa asked the SCBA when they had filed the petition and questioned why it was not listed for a hearing at once. He also asked the lawyer to give his arguments based on facts and lamented the petitioners’ lack of preparation. When SCBA lawyer Abid Zuberi started to speak about the 2017 census, the CJP observed that the counsel was not speaking on facts. He also said that if the lawyer had so many issues about the census then why did he not file a plea between 2017-2021, adding that he was now raising questions about the issue after the process was completed. However, the lawyer clarified that he was not taking a position that the 2023 census was wrong. On this point, Justice Minallah observed that those who were responsible for the delay in the census be held responsible and asked the counsel if he wanted polls in the country. “Yes, that’s what we only want that elections be held in the country,” said the counsel. However, CJP Isa stated that the SCBA’s petition was based on the census issue. At this, Justice Minallah inquired when the 90-day time period would end. “90 day period will complete on November 3,” responded Zuberi. “If we give orders to hold polls within 90 days will it be possible to hold the elections?” asked the CJP. Zuberi then conceded that if the top court gives the order even then it will not be possible to hold the elections within 90 days. The CJP then advised the lawyer to amend his petition, asking that if the president didn’t give a date, should the court issue a notice to him. “President has immunity,” responded Zuberi. “What can we do against the president? We can issue orders to restore our writ, if anyone is violating the Constitution then Article 6 will be applied,” remarked CJP Isa. Zuberi then mentioned that the Supreme Court had ordered polls be held in Punjab and Khyber Pakhtunkhwa. At this, the CJP agreed with the lawyer but asked him if the matter was not sub judice and told the lawyer that they should file a contempt petition as no one was stopping them. The CJP then remarked that one of the lawyers had written to the president to give an election date and wondered what happened with the letter. Lawyer Munir Ahmed, who is one of the petitioners in the case, stated that they did not get any response from the president. “;Then you are holding the president responsible for the delay in elections,” remarked CJP Isa on this. At this point, Justice Minallah interjected, stating that the census was a constitutional requirement and a delay in the elections was understandable. He then advised the lawyer to restrict his case to the issue of polls in 90 days. “It is not possible to hold polls within 90 days tell us what is possible,” remarked CJP Isa. Moving on, lawyer Anwar Mansoor Khan contended that after President Arif Alvi’s letter, it was the Election Commission of Pakistan’s (ECP) responsibility to give a date for the polls. However, the CJP said that the president himself was asking for an opinion in the document that he was using in his arguments. He also asked if the court should give a decision based on a tweet. The CJP then asked the SCBA president whose responsibility was to give a date for the polls. Who responded that it was the president’s prerogative. “You are twisting things again, If the president is responsible then do you want action against the president?” CJP Isa asked Zuberi. SCBA president then maintained that holding polls within 90 days was a constitutional requirement. But the CJP responded that the counsel was not pointing his fingers at the person responsible for not holding the polls within 90 days. “If you talk about elections then we can give a decision but if you talk about the interpretation of the constitution then we will have to form a constitutional bench,” said CJP Isa.