Supreme Court Justice Mussarat Hilali commented on Wednesday that the trial of civilians in military courts was meant for criminals involved in serious crimes, such as the army public school massacre in Peshawar. He questioned whether all civilians should be treated the same. Sitting in the seven-member constitutional bench during the hearing of an intra-judicial appeal against the apex court’s ruling against military trial of civilians, Justice Hilali emphasized that at present the Constitution of Pakistan is not suspended. The appeal before the constitutional court, headed by Justice Aminuddin Khan, arose from the verdict of a five-member bench of the apex court on October 23, 2023, which admitted the petitions against the trial of civilians involved in the May 9 riots. of 2023 and declared his military trial null and void. During Wednesday’s hearing, Khawaja Haris, a defense ministry lawyer, continued his arguments before the court. He argued that the Supreme Court’s decision was based on Articles 8(5) and 8(3) of the Constitution, which were totally different and could not be read together. Haris said these articles were misinterpreted in the majority decision. However, sitting on the bench, Justice Jamal Khan Mandokhail pointed out that in the present case, those accused of the May 9 violence were not from the armed forces and were not ex-servicemen either.
"Let’s only use the term civil," Jamal Mandokhail told the lawyer, adding that the question was "To what extent can a civilian be tried in military courts?". Judge Hilali added that all civilians could be treated the same as the APS attackers. Khawaja Haris responded that fundamental rights remain intact and the court’s decision was available in this regard. On this, Justice Muhammad Ali Mazhar, a member of the court, asked Haris to brief the court on the international practice regarding military courts. Haris said he would also inform the court about it. Justice Naeem Akhtar Afghan commented that the five members of the Supreme Court had struck down some sections of the Army Act, adding that if that decision was upheld then there could be no military trial of civilians, otherwise he would have to decide which civilian could be put on trial. the military trial. Justice Mandokhail observed that the authority of parliament was unquestionable. He highlighted that "Let the law say what a crime is and if parliament wants, tomorrow it can pass a law saying that looking askance is a crime.". However, the judge added that it was also parliament’s constitutional responsibility to establish a court where the trial for that crime would take place. "It is said that Parliament is supreme, I believe that the Constitution is supreme," he added. Justice Mazhar asked the Additional Attorney General of Punjab about those recently convicted by the military court. He replied that 27 accused were taken to Lahore jail, while two of the accused had been released. He said the prisoners had been treated according to the Prison Manual. He added that prisoners were allowed to eat home-cooked food and were also allowed to gather together. On this, Justice Mazhar addressed Hafizullah Niazi, father of convict Hassan Niazi, saying that he complained that these convicts were being kept in worse conditions. Niazi responded that these prisoners had been kept in solitary confinement because they were not released from their cells. Judge Mandokhail said he spent 14 days in prison when he was a lawyer. He added that after Fajr prayers, the prisoners were taken out of the cell. The additional attorney general said he had been in Bahawalpur jail with Justice Shahid Bilal Hassan, also a member of the constitutional court, in the past. However, Justice Mazhar joked that such secrets should no longer be revealed here. Justice Hilali noted that when she was the Chief Justice of the Peshawar High Court she used to visit jails regularly and added that she was generally not allowed to approach those convicted by military courts. Meanwhile, the Punjab government submitted a report to the Supreme Court stating that 27 of the 28 convicts were in Punjab jails, who were given all facilities under the Jail Rules, 1978, including three quality meals daily. , beds and blankets, in addition to meeting with their families on Fridays.
