Corps commanders meeting held on 15 May in the backdrop of attacks on military installations, monuments of the martyrs, Corps commander House in Lahore and GHQ, explicitly termed 9th May as the dark day in the history of Pakistan and also minced no words which political party was responsible for it. The forum resolved to try the masterminds, planners and those who carried out the plan under the Pakistan Army Act and Official Secret Act. In the following meeting of the Corps Commander, the decision of the first meeting was endorsed expressing unswerving resolve to deal with the perpetrators of those crimes befittingly.
It is pertinent to mention that the National Security Committee meeting that followed the huddle of the Corp Commanders also ratified the decisions of the latter and decided to observe the 9th May as a dark day. The Parliament also approved the resolution against the May 9 incidents approving the trial of those involved in them in the military courts,
Now when the trials of those involved in the 9th May incidents had already begun in the military courts, the SC with a 4-1 verdict declared the trial of civilians in the military courts as unconstitutional and held that 103 persons and others involved in the events of May 9 and 10, could be tried by the criminal courts established under the ordinary or special law of the land. The judges observed that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) & (ii) and subsection (4) of Section 59 of the said Act are ultra vires of the Constitution and no legal effect. As per the verdict, all the cases including those which were being tried in the military courts will have to be referred to the criminal or special courts established as per law. The verdict was given on a number of petitions praying that the trial of civilians in the military courts be stopped.
Challenging the writ of the state is an unpardonable offence.
The initial hearings were marred by objections on the bench formation and recusals by the judges. Finally, a six-member bench comprising then CJP Bandial, Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik heard the petitions. After the retirement of CJ Bandial, the case was taken up by the bench comprising other five judges.
It is worth recalling that in the backdrop of the terrorist attack on APS Peshawar on 16 December 2014 the government through the 21st Amendment in the constitution decided to establish military courts to try the individuals involved in that horrendous attack. The Supreme Court upheld the validity of the amendment and Pakistan Army (Amendment Bill) enacted by the parliament in allowing the functioning of the military courts for two years. The military courts sentenced 161 terrorists to death. The SC endorsed the setting up of military courts by an 11-6 majority. The bench with a 14-3 majority also dismissed petitions challenging the constitutional amendment and the formation of military courts under it.
The court agreed to allow the formation of military courts to try the terrorists in view of the severity of the crime and the failure of the normal justice system to deal with incidents of terrorism which pertained to national security. So it was recognized that where a matter requiring the security of the country is involved it is legitimate to take extraordinary measures to deal with the situation. In the case of the 9th May incidents, there are no two opinions about the fact that they constituted rebellion against the state and the institution which was responsible for the security of the country. There could not have been a greater crime than this. The incidents were unprecedented in the history of Pakistan.
No political party regardless of the compelling compulsions ever thought or dared to attack the security forces. Therefore, it needed to be dealt with in the same manner as it was done in the case of those who perpetrated the tragedy of APS. Fundamental rights are contingent upon allegiance to a state. Challenging the writ of the state is an unpardonable offence.
Unfortunately, the judges who delivered this verdict have failed to understand the severity and enormity of the crimes that were committed on 9th May against the Pakistan Army and the verdict of the larger bench of the Supreme Court regarding the formation of military courts to try terrorist who carried out the APS attack and similar attacks during that period. The decision also undermines the will and sense of the parliament on the issue. I am not a constitutional expert to delve into its intricacies but common sense which really makes sense suggests that the judges have not given a plausible decision in the matter. Military courts are also constitutional courts and adopt a proper procedure to dispense justice except that as compared to normal criminal courts their proceedings are completed in the shortest possible time in conformity with the principle of quick justice. The convicted persons can file appeals against the sentences in the high courts or the SC. In the current case, there is also a need for quick conclusion of the cases so that nobody ever dares to commit any anti-state act like this.
Having said this, I am sure that the verdict against trial in the military courts will not go unchallenged. An appeal against it will surely be lodged and a larger new bench excluding the judges who delivered this verdict will take up the case. Hopefully, better sense will prevail in the light of the decision of the SC given in the backdrop of the APS attack and the fact that the 9th May attacks were not ordinary crimes. Since they had been committed against the Pakistan Army, the involved person ought to be tried in the military courts.
The writer is a former diplomat and freelance columnist.