The Supreme Court has raised concerns about the government’s reasoning for prosecuting some civilians in military courts while others involved in the same May 9 events face trial in anti-terrorism courts.
“Of the accused in the May 9 cases, 103 were tried in military courts, while the remainder are being prosecuted in anti-terrorism courts,” observed Justice Naeem Akhtar Afghan during Thursday’s hearing.
The comments were made as a constitutional bench led by Justice Aminuddin Khan reviewed intra-court appeals challenging the trial of civilians in military courts.
A seven-member constitutional bench, led by Justice Aminuddin Khan, examines whether the military court trials align with Pakistan’s Constitution, particularly when fundamental rights were not officially suspended.
Justice Musarrat Hilali pointed out that no emergency had been declared when the accused were taken into military custody, questioning the legal basis for their trials under military law.
“Were fundamental rights suspended at that time? If not, can civilians be tried in military courts under such circumstances?” she asked.
Justice Hassan Azhar Rizvi raised concerns about the severity of the charges. “Is the 9 May incident more serious than acts of terrorism that merit their trial in military courts?” he asked.
Justice Rizvi referred to previous incidents, such as attacks on military installations, questioning the criteria for case allocation between military and anti-terrorism courts.
Justice Jamal Khan Mandokhail urged the government to strengthen anti-terrorism courts (ATCs) and civilian justice mechanisms.
“Why not empower civilian courts to handle such cases? Trials should be based on evidence and due process,” he remarked.
Justice Muhammad Ali Mazhar echoed the need for clarity, stating, “How are cases categorised for military courts versus ATCs? What principles guide this differentiation?”
Defence Ministry lawyer Khawaja Haris argued that the trials were constitutional and did not contravene Supreme Court rulings.
He addressed questions about Article 233, which deals with suspending fundamental rights during emergencies, asserting it was irrelevant to the current military court cases.
Haris maintained that the military trials were necessitated by the nature of the crimes, which involved attacks on sensitive military installations. However, he faced pushback from the bench, with Justice Mandokhail questioning why military courts were being used instead of reforming the civilian prosecution system.
The discussion also delved into historical precedents, including the trial of foreign operatives like Indian spy Kulbhushan Jadhav, and domestic cases involving attacks on military facilities. Justice Rizvi referenced the GHQ attack and past incidents where military courts played a role, asking for clarity on the broader implications of these cases.
The court questioned whether military trials provide access to robust legal representation and evidence, as required in civilian courts. Justice Mandokhail raised doubts about the adequacy of evidence in military trials, highlighting concerns about transparency and fairness.
The court also discussed the conditions of detainees, with Punjab’s Additional Advocate General presenting reports on their treatment. He claimed that detainees were provided outdoor time, access to a canteen, and home-supplied mattresses.
Justice Musarrat Hilali warned against misrepresentations, stating, “If you provide inaccurate reports, we will summon the Jail Reforms Committee for independent verification.”
The hearing was adjourned until tomorrow, with Khawaja Haris expected to continue his defence of the military court trials. The case underscores growing tension over military courts’ role in Pakistan’s justice system and their impact on constitutional rights.
May 9 suspects not linked to military: SC judge
The Supreme Court on Wednesday resumed hearings on an intra-court appeal challenging the military court trials of civilians, with Justice Jamal Mandokhail remarking that the suspects from the May 9 incidents have no affiliation with the armed forces.
A seven-member constitutional bench, led by Justice Aminuddin Khan, is hearing the case. Advocate Khawaja Haris, representing the Ministry of Defence, initiated arguments, asserting that the court’s earlier decision hinged on Article 8(5) and 8(3) of the Constitution, which he argued are distinct and cannot be conflated.
Justice Mandokhail urged Haris to move forward with his arguments, stating, “Your point was understood yesterday; now, proceed to complete the remaining arguments.”
Reading from the decision nullifying civilian trials in military courts, Haris pointed to the precedent set in the FB Ali case, asserting that the ruling permitted civilian trials under military jurisdiction. However, he contended the interpretation of Articles 8(3) and 8(5) was flawed in the majority judgment.
The defence lawyer emphasised that FB Ali’s case was unique, involving a retired officer prosecuted post-retirement when he was a civilian. Justice Mandokhail responded, “In the present case, the May 9 suspects have no ties to the armed forces. They are neither ex-servicemen nor civilians with military links.”
The hearing continues as the bench examines the constitutional validity of military court trials for civilians.
During previous hearing, Jamal Khan Mandokhail said that under the Constitution the executive branch of the state cannot perform the function of judiciary and that the Pakistan Army Act, 1952 applies only to armed forces personnel.
When the seven-member CB resumed hearing the appeals on Tuesday, the head of the bench, Justice Aminuddin Khan, announced that the court would only hear the military courts case on Tuesday and Wednesday (today) and ordered the registrar office to delist all the other cases.
During the hearing, the counsel for the Ministry of Defense’s counsel, Khawaja Haris, argued that the SC previously ruled that civilians under the military’s jurisdiction can be court-martialed.
Justice Mandokhail asked him as to who was the affected party or appellant in the May 9 cases. Haris responded that the Ministry of Defense was the appellant.
Justice Mandokhail questioned whether an executive body like the Ministry of Defense could act as both judge and decision-maker in a case involving itself, adding that there is a clear separation of powers outlined in the Constitution.
“The Constitution prohibits the executive from performing judicial functions, which is a fundamental constitutional issue in cases involving military courts,” he noted
