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.
