- Defense Ministry lawyer says precedent is set for military trial of civilians.
- Judge Mandokhail says May 9 suspects were not even “ex-servicemen”.
- Justice Musarrat Hilali says basic rights of Pakistani citizens remain intact.
ISLAMABAD: Supreme Court Justice Musarrat Hilali on Wednesday remarked that military trials were designed for culprits in cases like the Army Public School (APS) tragedy and questioned whether the same approach could be applied to all civilians.
The concern arose during a hearing on intra-judicial appeals against the military trial of civilians, in the constitutional bench of the Supreme Court, headed by Justice Amin-Ud-Din Khan.
Defense Ministry lawyer Khawaja Haris, who had been ordered to continue his arguments from where he left off at yesterday’s hearing, read out the high court verdict that had declared the military trial of civilians null and void.
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 had misinterpreted Articles 8(3) and 8(5) of the Constitution.
Justice Jamal Khan Mandokhail responded to this by saying that the court would see whether it agrees 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 when he was a civilian.
Haris noted that the decision established that FB Ali had not retired at the time of the crime, making his case unique.
Given this, Judge Mandokhail noted that the accused in the present case, linked to the events of May 9, had no connection with the armed forces.
“Today there is the term ‘ex-military,’ but these individuals were not even ex-military,” he said, explaining that they were simply civilians.
He went on to ask whether civilians could be tried under the Army Act and whether this applied only to specific citizens.
Haris responded by saying the general perception was different, but Judge Mandokhail urged him to ignore public opinion and directly address whether civilians could be tried in military courts.
In this case, Justice Hilali asked whether all fundamental rights would be suspended when the Army Act was applied, while Justice Mohammad Ali Mazhar asked about international practices and asked the Defense Ministry’s lawyer if he had any examples to offer.
Given this, the lawyer confirmed that he had examples and would present them later.
Justice Mazhar also noted that the First Schedule laws could not be amended. Haris stressed the importance of applying the current law in this case.
Meanwhile, Justice Mandokhail raised the issue of military trials for those guilty of terror attacks in which a significant number of young Pakistani soldiers are martyred. Will they also face military trials? he asked, adding that cases involving martyrs are not tried in military courts.
Given this, Haris clarified that this case was not about who could be tried in the future.
Judge Mandokhail asked to what extent civilians could be tried in military courts and what cases under Article 8, Section 3 would be eligible to be tried in military courts.
Meanwhile, Justice Hilali emphasized that Pakistan’s constitution has not been suspended and fundamental rights remain intact, as proven by court rulings.
Haris confirmed that there are legal precedents to support this.
The top court, in its unanimous verdict by a five-member bench, on October 23, 2023, declared trials of civilians before military courts null and void after admitting petitions challenging the trial of civilians involved in the riots on May 9.
However, on December 13, 2023, a six-member bench of the high court (with Justice Hilali dissenting from the majority) stayed its October 23 order on the petitions challenging the earlier verdict.
