The Supreme Court has expressed concerns about the government’s reasoning for prosecuting some civilians in military courts while others involved in the same May 9 events will be tried in anti-terrorism courts.
“Among the accused in the May 9 cases, 103 were tried by military courts, while the rest are being prosecuted before anti-terrorism courts,” observed Judge Naeem Akhtar Afghan during Thursday’s hearing.
The comments were made as a constitutional bench headed by Justice Aminuddin Khan considered intra-judicial appeals challenging the trial of civilians in military courts.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, is examining whether military court trials comply with Pakistan’s Constitution, particularly where fundamental rights have not been formally suspended.
Judge Musarrat Hilali stressed that no emergency was declared when the defendants were taken into military custody, questioning the legal basis of their trials under military law.
“Were fundamental rights suspended at that time? If not, can civilians be tried by military courts in such circumstances? » she asked.
Judge Hassan Azhar Rizvi expressed concerns about the seriousness of the charges. “Is the May 9 incident more serious than acts of terrorism that deserve to be tried by military courts? he asked.
Justice Rizvi pointed to previous incidents, such as attacks on military installations, questioning the criteria for dividing cases between military and anti-terrorism courts.
Justice Jamal Khan Mandokhail urged the government to strengthen the Anti-Terrorism Courts (ATC) and civil justice mechanisms.
“Why not empower civil courts to deal with such cases? Trials must be based on evidence and following due process,” he noted.
Justice Muhammad Ali Mazhar echoed the need for clarity, saying: “How are cases classified in military courts versus ATCs? What principles guide this differentiation?
Defense Ministry lawyer Khawaja Haris argued that the trials were constitutional and did not contravene Supreme Court rulings.
He responded to questions about Article 233, which deals with the suspension of fundamental rights in times of emergency, saying it was not relevant to current military court cases.
Haris argued that the military trials were necessitated by the nature of the crimes, which involved attacks on sensitive military installations. However, he faced resistance from Justice Mandokhail, questioning why military courts were being used instead of reforming the civil prosecution system.
The discussion also touched on historical precedents, including the trial of foreign agents like Indian spy Kulbhushan Jadhav, and domestic cases involving attacks on military installations. Justice Rizvi referred to the GHQ attack and past incidents in which military courts played a role, seeking clarification on the broader implications of these cases.
The court questioned whether military trials provide access to strong legal representation and evidence, as civilian courts require. 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 detention, with the Additional Advocate General of Punjab submitting reports on their treatment. He said inmates had access to outside time, a canteen and mattresses provided at home.
Judge Musarrat Hilali warned against false reporting, saying: “If you provide inaccurate reports, we will summon the Prison Reform Committee for an independent audit. »
The hearing was adjourned until tomorrow as Khawaja Haris is expected to continue his defense during the trials before the military court. This case highlights growing tensions over the role of military courts in Pakistan’s justice system and their impact on constitutional rights.
May 9 suspects have no army connection: SC judge
The Supreme Court on Wednesday resumed hearings on an intra-judicial appeal challenging the military trials of civilians, with Justice Jamal Mandokhail noting that the suspects in the May 9 incidents have no affiliation with the armed forces.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, is hearing the case. Lawyer Khawaja Haris, representing the Ministry of Defence, initiated the proceedings, saying the court’s earlier decision was based on Articles 8(5) and 8(3) of the Constitution, which he said are distinct and cannot be confused.
Justice Mandokhail urged Haris to move forward with his arguments, saying: “Your point of view was understood yesterday; now move on to concluding the remaining arguments. »
Reading the decision quashing civil trials in military courts, Haris pointed to the precedent set in the FB Ali case, saying the decision allowed civil trials under military jurisdiction. However, he argued that the interpretation of sections 8(3) and 8(5) was wrong in the majority judgment.
The defense lawyer pointed out that FB Ali’s case was unique, involving a retired officer who was prosecuted after retiring as a civilian. Justice Mandokhail replied: “In the present case, the May 9 suspects have no connection with the armed forces. They are neither ex-servicemen nor civilians with military connections.”
The hearing continues as the bench examines the constitutional validity of military court trials for civilians.
In an earlier hearing, Jamal Khan Mandokhail said that under the Constitution, the executive branch of the state cannot exercise the judicial function and that the Pakistan Army Act, 1952 applies only to the armed forces personnel.
When the seven-member CB resumed hearing the appeals on Tuesday, presiding judge Justice Aminuddin Khan announced that the court would hear the military courts case only on Tuesday and Wednesday (today ) and ordered the Clerk’s Office to expunge all cases. other cases.
During the hearing, defense ministry lawyer Khawaja Haris argued that the SC had previously ruled that civilians under military jurisdiction could be court-martialed.
Justice Mandokhail asked him who was the party concerned or the appellant in the May 9 cases. Haris responded that the Defense Ministry was the caller.
Justice Mandokhail questioned whether an executive body like the Defense Ministry could act as both judge and decision-maker in a matter involving it, adding that there is a clear separation of powers defined in the Constitution.
“The Constitution prohibits the executive from exercising judicial functions, which constitutes a fundamental constitutional question in cases involving military courts,” he stressed.
Haris said the executive could make decisions if no other forum was available. Justice Mandokhail pointed out that the Anti-Terrorism Courts (ATC) already exist as a legal forum. He wondered how the executive could assume a judicial role in their presence.
He said the Pakistan Army Act, 1952 is explicitly limited to members of the armed forces. He also questioned whether Article 8(3) of the Constitution, which concerns discipline within the army, could include criminal matters. He said the Constitution referred to “citizens of Pakistan”, not just civilians.
Haris argued that civilians joining the armed forces cannot contest cases in civilian courts under their fundamental rights. He added that Pakistan has had martial law for 14 years and the Army Act applies to cases where civilians interfere with the functions of the armed forces.
Justice Mandokhail questioned whether a civilian attempting to cross a military checkpoint would also constitute interference under this broad interpretation, suggesting that such a definition could lead to overreach.
Justice Muhammad Ali Mazhar observed that the case has two aspects: The SC in October 2023 struck down certain provisions of the Pakistan Army Act, 1952 while also declaring the trial of civilians in military courts illegal.
Justice Musarrat Hilali highlighted the importance of Justice Mandokhail’s question regarding where disputes involving civilians at military checkpoints should be adjudicated. Justice Mazhar said the Army Act specifies the crimes it covers.
Judge Hilali expressed concerns about the extension of powers to try civilians. She said it was necessary to determine whether such trials were constitutional.
At the end of the session, Hafeezullah Niazi, the father of Imran Khan’s nephew Hassaan Niazi, addressed the court, expressing concerns over the conditions of 22 prisoners convicted by the military courts in Lahore last week.
He said these prisoners, including his son Hassan Niazi, would be held in a high-security zone without the rights provided by the prison manual. Justice Mazhar said these May 9 rioters are now convicted prisoners and asked why they are being denied rights under the prison manual.
The court ordered the Punjab government to respond to the allegations.
Hafeezullah Niazi told CB that although sentences of 2 to 10 years were handed down, no detailed justification for these judgments was provided.
Judge Hilali asked whether the reasons for the judgments had actually been accepted. Justice Mazhar advised Niazi to present his arguments at the appropriate time. The hearing is expected to continue today (Wednesday).
It is noteworthy that on October 23, 2023, a five-member bench of the Supreme Court unanimously declared the trial of civilians in military courts null and void and ordered that the 103 accused in cases related to the violence of May 9 and 10, 2023 be tried according to ordinary criminal laws.
The court, by a majority of 4:1, also declared certain clauses of the Pakistan Army Act, 1952 ultra vires the Constitution.
The government then filed an intra-judicial appeal against the verdict, and a six-member bench of the SC, on December 13, 2023, by a vote of 5:1, stayed the October 23 order.
