The Supreme Court has expressed concern about the government’s reasoning for prosecuting some civilians in military courts, while others involved in the same May 9 events face trials in anti-terrorism courts.
“Of the accused in the May 9 cases, 103 were tried in military courts, while the rest are being tried in anti-terrorism courts,” Judge Naeem Akhtar Afghan observed during Thursday’s hearing.
The comments were made as a constitutional court headed by Justice Aminuddin Khan reviewed intra-judicial appeals challenging the trial of civilians in military courts.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, is examining whether trials in military courts align with Pakistan’s Constitution, particularly when fundamental rights were not officially suspended.
Judge Musarrat Hilali noted that no emergency had been 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 in military courts in such circumstances?” she asked.
Judge Hassan Azhar Rizvi expressed concern over the seriousness of the charges. “Is the May 9 incident more serious than acts of terrorism that deserve to be tried in military courts?” asked.
Judge Rizvi referred to previous incidents, such as attacks on military installations, and questioned the criteria for allocating cases between military and anti-terrorism courts.
Justice Jamal Khan Mandokhail urged the government to strengthen 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 due process,” he stressed.
Justice Muhammad Ali Mazhar echoed the need for clarity, stating: “How are cases classified for 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 addressed questions about Article 233, which deals with the suspension of fundamental rights during emergencies, stating that it was irrelevant to current military court cases.
Haris argued that military trials were necessary because of the nature of the crimes, which involved attacks on sensitive military installations. However, he faced opposition from the court, with Judge 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 agents such as Indian spy Kulbhushan Jadhav, and domestic cases involving attacks on military installations. Justice Rizvi made reference to the attack on Headquarters and past incidents in which military courts played a role, and called for clarity on the wider implications of these cases.
The court questioned whether military trials provide access to strong evidence and legal representation, as required in civilian courts. Judge Mandokhail raised questions about the adequacy of evidence in military trials and highlighted concerns about transparency and fairness.
The court also discussed the conditions of the detainees, with the Additional Advocate General of Punjab submitting reports on their treatment. He stated that the detainees were provided with time outdoors, access to a canteen and mattresses at home.
Justice Musarrat Hilali warned against misrepresentations, saying: “If you provide inaccurate reports, we will convene the Prison Reforms Committee for independent verification.”
The hearing was adjourned until tomorrow and Khawaja Haris is expected to continue his defense in the trials before the military court. The case highlights growing tension over the role of military courts in Pakistan’s justice system and its impact on constitutional rights.
May 9 suspects not linked to the army: SC judge
The Supreme Court on Wednesday resumed hearings on an intra-judicial appeal challenging the trials of civilians before military courts, with Judge Jamal Mandokhail commenting 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. Advocate Khawaja Haris, representing the Ministry of Defence, began his arguments, stating that the court’s earlier decision depended on Article 8(5) and 8(3) of the Constitution, which, according to him, are distinct and cannot be combined .
Justice Mandokhail urged Haris to press ahead with his arguments, stating: “Yesterday we understood your point; now proceed to complete the remaining arguments.”
Reading the decision annulling civilian trials in military courts, Haris pointed to the precedent set in the FB Ali case, stating that the ruling allowed for civilian trials under military jurisdiction. However, he held that the interpretation of Articles 8(3) and 8(5) was erroneous in the majority judgment.
The defense attorney emphasized that FB Ali’s case was unique as it involved a retired officer prosecuted after his retirement when he was a civilian. Judge Mandokhail responded: “In the present case, the May 9 suspects have no links with the armed forces. They are neither ex-servicemen nor civilians with military links.”
The hearing continues as the court examines the constitutional validity of military court trials for civilians.
During the previous hearing, Jamal Khan Mandokhail said that as per the Constitution, the executive branch of the state cannot perform the function of judiciary and the Pakistan Army Act 1952 applies only to armed forces personnel.
When the seven-member CB resumed hearing appeals on Tuesday, chief justice Justice Aminuddin Khan announced that the court would only hear the case from military courts on Tuesday and Wednesday (today) and directed the registry office to remove all other cases from the list.
During the hearing, Defense Ministry lawyer Khawaja Haris argued that the SC previously ruled that civilians under military jurisdiction can be court-martialed.
Justice Mandokhail asked him who was the affected party or the 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 a judge and decision-maker in a case involving it, adding that there is a clear separation of powers outlined in the Constitution.
“The Constitution prohibits the Executive from exercising judicial functions, which is a fundamental constitutional issue in cases involving military courts,” he said.
Haris said the executive could make decisions if no other forum was available. Justice Mandokhail noted that anti-terrorism courts (ATC) already exist as a legal forum. He questioned how the executive could assume a judicial role in his 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 refers to discipline within the military, could include criminal matters. He said the Constitution refers to “citizens of Pakistan”, not just civilians.
Haris argued that civilians who join the armed forces cannot challenge matters in civilian courts under fundamental rights. He added that Pakistan has experienced martial law for 14 years and that the Army Law applies to cases where civilians interfere with the duties of the armed forces.
Judge 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 an overreach.
Justice Muhammad Ali Mazhar observed that the case has two aspects: In October 2023, the SC struck down certain provisions of the Pakistan Army Act 1952 and at the same time declared the trial of civilians in military courts illegal.
Justice Musarrat Hilali noted the importance of Justice Mandokhail’s question about where disputes involving civilians at military checkpoints should be adjudicated. Judge Mazhar stated that the army law specifies the crimes it covers.
Justice Hilali expressed concern over the expansion of powers to try civilians. He said it is necessary to determine whether such trials are constitutional.
At the end of the session, Hafeezullah Niazi, father of Imran Khan’s nephew Hassaan Niazi, addressed the court and expressed concern over the conditions of 22 prisoners convicted by military courts in Lahore last week.
He said these prisoners, including his son Hassan Niazi, were reportedly being held in a high-security zone without rights according to the prison manual. Justice Mazhar said these May 9 rioters are now convicted prisoners and asked why they are being denied their rights under the jail manual.
The court directed the Punjab government to respond to these allegations.
Hafeezullah Niazi told CB that while sentences of 2 to 10 years were handed down, no detailed reasons for the sentences were given.
Judge Hilali asked if the reasons for the sentences were indeed concealed. Justice Mazhar advised Niazi to present his arguments at the right time. The hearing will continue today (Wednesday).
It should be noted that on October 23, 2023, a five-member chamber of the Supreme Court unanimously declared the trial of civilians in military courts null and void and ordered that the 103 defendants in cases related to the violence of May 9 and 10 , 2023 be tried in accordance with ordinary criminal laws.
The court, by a majority of 4 to 1, also declared that certain clauses of the Pakistan Army Act, 1952 were ultra vires of the Constitution.
The government subsequently filed an intra-judicial appeal against the verdict, and a six-member SC bench, on December 13, 2023, by a vote of 5 to 1, stayed the October 23 order.
