May 9: A Judiciary Caught In The Fire 

After the May 9 incidents, all eyes turned towards the judiciary, keenly observing its next moves. Would it allow the trial of civilians in military courts, would it form a judicial commission to probe the matter? A year on, we have more questions than answers

May 9: A Judiciary Caught In The Fire 

As the nation still comes to terms with what happened across the country on May 9, 2023, and whatever happened since, one state institution, in particular, is being blamed for not playing its role enough and for acting too slowly to provide a resolution with critics pointing to a clear divide that has surfaced.

The judiciary, in general, and the Supreme Court, in particular, have been blamed for not moving swiftly enough to decide the fate of the thousands of Pakistan Tehreek-e-Insaf (PTI) workers who remain in custody a year since the incident, with their cases pending adjudication in different courts of law. The government claims that some 62 incidents of violence were reported in Punjab alone, which caused injuries to approximately 250 people, including 184 law enforcement personnel. Additionally, 139 vehicles, including 98 official vehicles, were partially or completely damaged. Overall, the violence caused damages worth an estimated Rs2.54 billion, including Rs1.983 billion in losses to the military establishments, equipment and vehicles. The government blames the PTI and its leadership for orchestrating the attacks.

Lawyers who have been representing those incarcerated and contesting cases in various civil courts and those contesting the government's decision to try civilians in military courts for attacking military installations cite technical or procedural issues such as the top court's decision to constitute a larger bench which has impeded the swift resolution of the matter. Yet, it is the military courts who have thus far provided terminal decisions on the cases of 20 suspects arrested for their involvement in the May 9 incidents after determining that they were not involved and were innocent. An anti-terrorism court has also decided some cases.

Currently, the matter of reconstituting the bench to hear the appeals is pending with a three-member committee of judges.

Trying civilians in military courts and SC

At the last hearing on the matter by a six-judge larger bench headed by Justice Aminud Din Khan, the Attorney General for Pakistan (AGP) was directed to place on record copies of the judgements passed against the 20 convicts.

However, the intra-court appeals and a set of auxiliary applications have again been referred to the three-judge bench formation committee for the constitution of a larger bench.

The matter of trying civilians in military courts, a complex and contentious issue, first came before the top court in June last year. The then-chief justice, Umar Ata Bandial, formed a nine-member larger bench to hear the case. However, Justice Qazi Faez Isa (then senior puisne judge) and Justice Sardar Tariq Masood declined to sit on the bench until a final decision had been made in the Practice and Procedure Act 2023. This led to the formation of a seven-member bench headed by then-chief justice Bandial to hear the petitions.

However, the government objected to Justice Syed Mansoor Ali Shah's inclusion in the bench owing to his relationship with one of the petitioners, the former chief justice of Pakistan, Jawwad S. Khawaja. Subsequently, Justice Shah recused himself from the bench.

The six-judge bench, led by former chief justice Bandial, resumed hearings until his retirement in September. After Bandial's retirement, the case was fixed before Justice Ijazul Ahsan in October 2023, with the endorsement of the three-judge case affixing committee formed under the Practice and Procedure Act 2023. A five-judge, larger bench headed by Justice Ahsan decided, after just one hearing, that trials of civilians in military courts were unconstitutional. The federal government, however, filed intra-court appeals against the decision made on October 23, 2023.

Subsequently, a six-member larger bench, led by Justice Sardar Tariq Masood, was assembled to hear the government's appeals.

In December last year, the larger bench, with a majority vote of 5 to 1, suspended the decision made on October 23 and conditionally permitted the trials of civilians in military courts. After Justice Masood's retirement, the three-judge committee reconstituted the larger bench under the leadership of Justice Aminuddin Khan to handle the government's ICAs.

Given that May 9 is intricately intertwined with the country's politics since protests on the day and the chaos that followed stemmed from the arrest of PTI founder Imran Khan from the premises of the Islamabad High Court (IHC), the political approach and behaviour of PTI and its founder towards the state and its institutions cannot be ruled out as a contributing factor. 

Many, however, believe that the change in regime within the Supreme Court in September 2023 also played a vital role in prolonging the incarceration of civilians who were being tried in military courts.

Recently, Chief Justice Qazi Faez Isa remarked during a hearing of the Faizabad Protest Case that if the government had implemented his judgment in that case, incidents such as May 9 would not have happened. His comment referred to the meddling of institutions in political affairs and the role of politicians.

However, lawyers and legal experts say that the chief justice's remarks reflect a consensus among certain key members of the judiciary and that the latter's views on the May 9 incidents are aligned with those of other state institutions. However, they question the overall role played by the judiciary towards those involved in the May 9 attacks and the cases pertaining to them, which are currently languishing in different courts of law.

Legal expert Hafiz Ahsaan Ahmad Khokhar told The Friday Times that it is important to make early decisions for cases in every criminal justice system. He said that early decisions are important not only for the rule of law but also to create a deterrent in society so that no one repeats or dares to commit crimes against individuals or even states. He lamented that although incidents took place across the country on May 9, only one Anti-Terrorism Court (ATC) has decided cases while all other remaining cases are pending. He said that this puts a big question mark on our criminal justice system.

"Early decision of cases and restructuring of the whole criminal justice system would lead to the country having a rule of law and a peaceful society that believes in a time-bound accountability against wrongdoers," he said.

State lethargy or strategy?

Some have suggested that there is a strong perception that decisions in these cases, some of which are pending before special courts, have been deliberately delayed to transfer judges who intend to grant relief.

Punjab's Prosecutor General Syed Faraz Ali Shah has strongly negated this perception.

He said that judges of special courts are transferred upon completing their respective tenures. He blamed some vloggers for portraying a negative picture in society regarding the transfer of judges. Shah went on to say that one cannot compare the trial of 20 suspects in a case with the trial of more than 20 accused in another case. 

"One should not expect the completion of trials for both cases together," he said. 

He claimed that the prosecution has been dealing with cases of May 9 suspects fairly and in accordance with the evidence collected by the police. 

Asked about suspects arrested for their alleged involvement in the attack on Jinnah House, the Punjab Prosecutor General said that the prosecution has submitted the challan (charge sheet), and the cases are at the indictment stage. However, he conceded that in this instance, proceedings were currently on pause because of the transfer of judges. 

It is worth mentioning here that the Lahore High Court (LHC), while hearing a petition, ordered the government to complete the process of appointing judges in special courts so that these courts can continue to dispense justice.

Shah further claimed that there is not a single case wherein a challan has not been submitted. He added that there were some cases that were still in the evidence stage, while charges have been framed in other cases.

The other reason for halting trials, he said, was that some suspects had challenged proceedings in the LHC.

Advocate Faisal Chaudhry told The Friday Times that lethargy on behalf of the prosecution is reflected in the fact that an entire year has passed, and in many instances, the police have yet to complete their investigations. He argued that due to state lethargy in pursuing cases, thousands of citizens are languishing in jail awaiting trials.

"The courts have also been insensitive and oblivious towards the fundamental rights of citizens," Chaudhry claimed.

He added that the female prisoners have been treated in contravention to the principles of derogation of fairness and justice. He said that May 9 was a seminal moment in Pakistan's history that has been exacerbated by how badly handled affair, both legally and politically, it has turned into, adding that the people have rejected the state's narrative during the recent elections by overwhelmingly voting for a particular party.

He claimed that the police and the government have been acting on politically motivated lines. He said that they have preferred to target PTI leaders in these cases, often frivolously.

"Many who joined other parties or held press conferences have been ignored in spite of being named initially," he said, referring to how many erstwhile PTI leaders who were cleared of all charges after they publicly announced they were switching allegiances.

While the civilian courts have been slow to decide cases, one court of law which was expected to act expeditiously were the military courts.

Regarding the delay in deciding cases in military courts, Advocate Hafiz Ahsan Khokhar explained that the Supreme Court's judgment restrained the military courts from progressing or deciding cases.

"In the first round [of litigation], the Supreme Court set aside the amendments made to the Pakistan Army Act in 1967, despite the fact that the Supreme Court consistently upheld these provisions of Section 2(d)(10) of the Army Act, but in the instant case it was decided otherwise under Article 184(3) of the Constitution, which was unprecedented," he said adding that this is why proceedings of cases in military courts have been delayed.

He believes that it is now important for the Supreme Court to not only first decide the intra-court appeal (ICA) against its October 23 judgment but also decide the fate of more than 250 appeals filed against the Peshawar High Court's judgment. 

"It is important to decide all such cases relating to terrorism by all courts, wherever they are pending, including superior courts," he added.

It is pertinent to mention here that those who face trials in military courts are accused of attacking the Corps Commander House in Lahore, the Pakistan Air Force (PAF) Base Mianwali, an Inter-Services Intelligence (ISI) Establishment in the Civil Lines of Faisalabad, Sialkot Cantt, ISI Establishment Hamza Camp in Rawalpindi, Gujranwala Cantt, Bannu Cantt and Peshawar Radio Station in Peshawar Cantt.

The top court had allowed military courts to resume trials, following which the courts handed out sentences in cases where the sentences were short enough to ensure near-immediate release of the convicts. Once the sentences were pronounced, parts of the sentences were commuted, and the convicts were released after they were deemed to have completed their sentences.

"Moreover, 20 people were awarded sentences of one year," stated the federal government in a document it submitted to the top court. Out of the 20 convicts, 17 had served a period of 10.5 months, and three had served a period of 9.5 months. Those who were acquitted belonged to Punjab and Khyber Pakhtunkhwa.

"None of the people have served a full period of one year; however, upon confirmation of their sentence, the remaining period of their punishment was remitted by the Chief of the Army Staff under section 143(1) (i) of the Pakistan Army Act, 1952," it added. 

Barrister Khadija Siddiqui, a lawyer for one of those allegedly involved in the May 9 attacks, told The Friday Times that trials of the accused in military courts have been completed. She lamented that military courts have been stopped from deciding the fate of the suspects since the matter is pending before the top court, and the accused persons shall remain incarcerated until a final decision in the case.

A house divided against itself

Former additional attorney general Tariq Mehmood Khokhar termed May 9 a 'permit' to prosecute a political party and that in its wake, violence has been perpetrated with impunity against the Constitution, democracy, the rule of law and judicial independence. 

Khokhar said that the established order deems May 9 a national debacle and wishes to memorialise it as such. 

Rightly or wrongly, much of the nation calls May 9 an orchestrated non-event, which they repudiated on February 8 with their votes. "They saw it as a laissez-passer (a permit) to crush the largest political party."

He said that one bench of the Supreme Court ruled against trying civilians in military courts, though an appellate bench suspended the ruling. Another bench found no merit in the charges and granted bail to those who had applied for it.

He said the 'established order', the CJP and his faction, the Supreme Court Bar Council and Bar Association, unrepresentative governments and unrepresentative legislatures and the controlled media appeared to be on the same page.

"The consequent violence against the constitution, democracy, the rule of law and judicial independence was committed with impunity," he said, adding, "The PTI and its members, and its leaders were imprisoned and tortured and made to recant. All that and much else failed to move the CJP and his faction."

As a consequence of this and through an inverted jurisprudence, he said that a Supreme Court bench headed by the CJP deprived the PTI of its Election Symbol (the bat). 

"Unrepresentative governments and legislatures were imposed. The Supreme Court remained unconcerned," he said.

Finally, a dissenting Supreme Court bench, headed by senior puisne judge, suspended the Peshawar High Court judgement in reserved seats case, Khokhar said, referring to the recent decision by Justice Mansoor Ali Shah to hear petitions filed by the Sunni Ittehad Council — which has absorbed the independent candidates of the PTI. 

A singularly most significant relief yet for the PTI, he said, adding that the decision had also destroyed the illusion of a wilful blindness to see the Constitution, democracy and the rule of law under assault. It also put a halt, albeit temporarily, to the Established Order's constitutional amendment plans to rule us with its Constitution, with its democracy and with its judges. 

Evidently, the Supreme Court is a house divided against itself, with predictable judgements, depending on the constitution of the benches. 

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain