THE October 2023 judgement had been widely hailed as ‘historic’. The one issued by five judges this Tuesday will one day prove equally significant, albeit for entirely different reasons. Earlier this week, while Pakistanis were still cheering for their air force after it successfully tackled the late-night marauders next door, the Supreme Court’s Constitutional Bench threw a wet blanket on the public mood with the announcement that it was restoring sections of the Pakistan Army Act that allow for civilians to be court-martialled.
Ruling with a 5-2 majority, the bench overturned the unanimous decision issued in October 2023 by five senior justices of the Supreme Court — including three who are still serving, most notably the incumbent chief justice of Pakistan — who had ruled that there could be no justification under the Constitution for military trials of civilians.
It may be recalled that the original judgement also ruled that all cases against civilians being tried under the Act should be transferred to civilian courts, where they would be retried under ordinary criminal law. Unfortunately, that was never to be.
The latest ruling issued by the Constitutional Bench was salt on the wound for many in the legal community, who had hailed the original judgement for restoring a measure of sanctity, fairness, transparency and due process in the Pakistani justice system, only to see it taken away within two months by an appellate bench set up by former chief justice Qazi Faez Isa.
It may also be recalled that, as the then senior puisne judge had alleged, this appellate bench was formed in violation of the Practice and Procedure Act and in response to petitions moved by controversial caretaker governments whose tenure had already exceeded their constitutional expiry dates. To top it off, the appellate bench was then handed over to a judge who had already revealed their mind on the military trial of civilians.
Thereafter, the legal fate of some 103 individuals facing military trials remained in limbo from December 2023 till Tuesday, a period of about a year and a half. The final call was to undo the gains achieved for civilian rights under the original verdict and revert to status quo ante. Sadly, while the people took heart from the victory in the skies, they were defeated by the courts. It is up to the people to draw their own conclusions.
Published in Dawn, May 9th, 2025
