- Defense Department lawyer says precedent set for military trials of civilians.
- Justice Mandokhail said the May 9 suspects were not even “ex-servicemen”.
- Justice Musarrat Hilali says the fundamental rights of Pakistani citizens remain intact.
ISLAMABAD: Supreme Court Justice Musarrat Hilali on Wednesday remarked that military trials were designed for the guilty in cases like the Army Public School (APS) tragedy and questioned whether the same approach could be applied to all civilians.
The concern was raised during a hearing on intra-judicial appeals against the military trial of civilians, before the Constitutional Bench of the Supreme Court, headed by Justice Amin-Ud-Din Khan.
The lawyer representing the Defense Ministry, Khawaja Haris, who was asked to continue his arguments from where he left off yesterday during the hearing, read out the apex court’s verdict which declared the ruling null and void. military trial of civilians.
Haris argued that the precedent had already been set in previous cases that civilians could also be tried in military courts. He argued that the majority decision misinterpreted Articles 8(3) and 8(5) of the Constitution.
Justice Jamal Khan Mandokhail responded to this by saying that the bench would see whether it agreed with the lawyer or not.
Haris argued that the interpretation wrongly suggested that the FB Ali case was of a different nature. He explained that Brigadier FB Ali was tried after his retirement while he was a civilian.
Haris pointed out that the ruling indicated that FB Ali had not retired at the time of the offense, making his case unique.
Justice Mandokhail then stressed that the accused in the present case, linked to the events of May 9, had no connection with the armed forces.
“Nowadays there is a term ‘ex-military,’ but these individuals weren’t even ex-military,” he said, explaining that they were simply civilians.
He then asked whether civilians could be tried under the Army Act and whether it only applied to specific citizens.
Haris responded by saying the general perception was different, but Justice Mandokhail urged him to ignore public opinion and ask directly whether civilians could be tried in military courts.
Here, Justice Hilali asked whether all fundamental rights would be suspended during the implementation of the Army Law, while Justice Mohammad Ali Mazhar asked about international practices, asking the Ministry of Defense’s counsel Defense if he had examples to provide.
The lawyer then confirmed that he had examples and would present them later.
Justice Mazhar also emphasized that the First Schedule laws cannot be amended. Haris stressing the importance of applying current law in this matter.
At the same time, Justice Mandokhail raised the issue of military trials of those guilty of terrorist attacks in which a significant number of young Pakistani soldiers were martyred. Would they also face military trials, he asked, adding that this is why cases involving martyrs are not tried in military courts.
Haris clarified that this case is not about who might be tried in the future.
Justice Mandokhail asked to what extent civilians could be tried in military courts and which cases under Section 3 of Article 8 could be tried in military courts.
Furthermore, Justice Hilali emphasized that the constitution of Pakistan has not been suspended and fundamental rights remain intact as reflected in judicial decisions.
Haris confirmed that there are legal precedents to support this claim.
The top court, in its unanimous verdict delivered by a five-member bench on October 23, 2023, declared the trials of civilians in military courts null and void after admitting the petitions challenging the trial of civilians involved in the riots from May 9.
However, on December 13, 2023, a six-member bench of the apex court – with Justice Hilali dissenting from the majority – stayed its October 23 order on petitions challenging the earlier verdict.
