ISLAMABAD: Amid escalating tensions with India, a five-member Constitutional Bench of the Supreme Court on Wednesday restored key provisions of the Pakistan Army Act (PA A) that allow for the trial of civilians in military courts. The court ruled by a 5-2 majority in favour of overturning its earlier decision from Oct 23, 2023.

`The impugned (Oct 23) judgement is set aside and ... Sections 2(1d)(i) and (ii) as well as Section 59 (4) of the PAA are restored, observed Justice Aminuddin Khan while reading out the majorityjudgement. These clauses had previously been struck down in a split 4-1 verdict.

The majority comprising Justices Aminuddin Khan,Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali and Shahid Bilal Hassan upheld the provisions, while Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan dissented, reaffirming the earlier decision.

The judgement also asked the government and parliament to amendthe PAA and related rules within 45 days to provide an independent right of appeal in the high courts for civilians convicted by military courts.

The need for legislation was highlighted to comply with the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework.

In their minority judgement, Justice Mandokhail and Justice Afghan set aside intra-court appeals, emphasising that the PAA was a disciplinary statute and relates to members of the armed forces to ensure proper discharge of their duties and maintenance of discipline, as pro-vided by Article 8(3a) of the Constitution, and, therefore, does not offer fundamental rights to persons under the military discipline.

The majority judgement explained that Sections 2(1d)(i) and (ii) could not be declared ultra vires on the anvil or bedrock of Article 8(5) of the Constitution, which states that the fundamental rights will not be suspended except as expressly provided by the Constitution.

`Thus, it does not control the rigors of Article 8(3),` the majority judgement explained, adding that no question with regard to the suspension of any fundamental rights was involved within the sphere of influence or realm of Article 233 ofthe Constitution.

The bench cited Attorney General for Pakistan (AGP) Mansoor Usman Awan, who submitted that 39 military installations were attacked during the May 9, 2023, unrest 23 in Punjab, eight in Khyber Pakhtunkhwa, seven in Sindh, and one in Balochistan. These included GHQ, the Corps Commander House in Lahore, Mianwali Air Base, and ISI offices in Sargodha, Faisalabad and Rawalpindi.

The AGP argued that the attacks were coordinated and deliberate, occurring within a span of four to six hours across the country, and left lasting damage.

He also revealed that disciplinary action had been taken against military personnelfor dereliction of duty, and that the Lahore Corps Commander House was rendered nonoperational for four to five hours.

`All fundamental rights enshrined and envisaged under the Constitution are subject to reasonable restrictions imposed by the law,` the judgement said, adding that peaceful assembly, association or public demonstration within the bounds of reasonable restrictions imposed by the law was not prohibited, but violent or unlawful acts are not protected.

`No doubt, all miscreants, lawbreakers and perpetrators of May 9 incidents are liable to be punished on proving their guilt, subject to right of appeal against their conviction,` it said.

However, the judgement emphasised the need for appellate oversight. `The independent right of appeal before an inde-pendent forum is a basic limb of the doctrine of due process and the right to a fair trial as enshrined and envisioned under Article 10-A of the Constitution, it observed.

If an independent right of appeal is provided in the high court for challenging the original order or internal departmental appellate order of conviction, then obviously, the high court in exercise of its appellate jurisdiction may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges and whether proper procedure in the trial was followed in letter and spirit, it said.

However, it clarified that the limitation period for filing an appeal in the high court will begin once amendments to the PAA are notified. It said trial courts will independently adjudicate any pending high court petitions challenging anti-terrorism court orders that transferred civilian cases to military jurisdiction.

The judgement alsodirected its office to transmit the short order to the AGP office, the Secretary General of the National Assembly, the Secretary of the Ministry of Law and Justice, the Secretary of the Ministry of Defence, and the Secretary of the Law and Justice Commission to ensure compliance.

Dissenting opinion The minority judgement explained that Section 2(1d) of the PAA relates to civilians and does not qualify for exemption from fundamental rights and therefore cannot be retained as part of the act.

It said Article 175 of the Constitution, which provides the establishment and jurisdiction of courts, requires that in order to fully secure the independence of the judiciary, it must be separated from the executive in all respects.

`The courts martial consisting of executive, being outside the scope of Article 175(3) of the Constitution, cannot prosecute the civilians,` it said. The trial of civilians by courts martial `offends the fundamentalprinciple of independence of judiciary, fundamental rights of security of person, safeguards as to arrest and detention, fair trial and due process, right to information, equality of citizens and injunctions of Islam`, it added.

Moreover, the denial of the right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum also violates the fundamental right to a fair trial and due process, the minority judgement said.

The minority view held that such trials breach international obligations under the ICCPR and UN human rights conventions to which Pakistan is a signatory.

The dissenting judges declared civilian convictions by military courts unconstitutional and ordered that these individuals be treated as under-trial prisoners, with their cases transferred to competent civilian courts for retrial.

They further ruled that those who had already served sentences or were acquitted under the PAA would be treated as dis-charged under Section169 of the Criminal Procedure Code (CrPC).

The ruling drew sharp criticism from legal and political quarters. Former additional advocate general Tariq MehmoodKhokhar condemned the verdict, calling it `insanity devoid of constitutional sense` and accusing the judiciary of enabling authoritarianism.

The judgement emboldened the worst excesses ofthe established order, he said, adding: `We were repeating the sins of the past: judicial capitulation, collaboration and complicity.

PTI Secretary General Salman Akram Raja alsodenounced the verdict, stating that Pakistan was now the only country where civilians would be tried in military courts.

`This strips every citizen of their right to a fair trial,` he said.