CB puts tough questions

Bench focuses on constitutional merits of military trials of civilians

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ISLAMABAD:

Supreme Court Justice Mussarat Hilali remarked on Wednesday that the trial of civilians in military courts was intended for criminals involved in severe crimes, such as the Army Public School massacre in Peshawar. She questioned whether all civilians should be treated in the same manner.

Sitting on seven-member constitutional bench during the hearing of an intra-court appeal against the apex court's ruling against the military trial of the civilians, Justice Hilali emphasised that at present the Constitution of Pakistan was not suspended.

The appeal before the constitutional bench, led by Justice Aminuddin Khan, stemmed from the verdict of a five-member bench of the top court in October 23, 2023 that admitted the petitions against the trial of civilians involved in the May 9, 2023 riots and declared their military trial as null and void.

During the hearing on Wednesday, Khawaja Haris, the lawyer for the defence ministry, continued his arguments before the bench. He argued that the Supreme Court 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 that these articles were misinterpreted in the majority decision. However, sitting on the bench, Justice Jamal Khan Mandokhail remarked that in the present case, the accused of the May 9 violence did not belong to the armed forces and that they were not the ex-servicemen, either.

"Let us use the term of civilian only," Jamal Mandokhail told the lawyer, adding that the question was "to what extent can a civilian be tried in military courts".

Justice Hilali added that whether all civilians could be treated the same way as the APS attackers.

Khawaja Haris replied that fundamental rights remain intact and that the court's decision were available in this regard. On that, bench member Justice Muhammad Ali Mazhar asked Haris to inform the court about international practice regarding military courts. Haris said he would apprise the court of it also.

Justice Naeem Akhtar Afghan remarked that the five-member Supreme Court bench had repealed some sections of the Army Act, adding that if that decision was upheld then there could be no military trial of the civilians, otherwise it would have to decide which civilian could undergo the military trial.

Justice Mandokhail observed that the authority of parliament was unquestionable. He emphasised that "let the law say what is a crime and if parliament wants, it can make a law tomorrow that looking askance is a crime".

However, the judge added that it was also the constitutional responsibility of parliament to establish a court where the trial of that crime would take place. "It is said that Parliament is supreme, I think the Constitution is supreme," he added.

Justice Mazhar asked the additional advocate general of Punjab about those convicted by the military court recently. He replied that 27 accused were brought to the Lahore jail, while two of the accused had been released. He said that the prisoners had been treated according to the Jail Manual.

He added that the convicts were allowed to have home-cooked meal, while their meetings were also being allowed. On that Justice Mazhar addressed Hafizullah Niazi, father of convict Hassan Niazi, saying that he was complaining that those convicts were being kept in worse conditions.

Niazi replied that these convicts had been kept in solitary confinement as they were not being taken out of their cells. Justice Mandokhail said that he had spent 14 days in jail when he was a lawyer. He added that after the Fajr prayers, the prisoners were taken out of the cell.

The additional advocate general said that he had been in Bahawalpur Jail with Justice Shahid Bilal Hassan, also a member of the constitutional bench, in the past. However, Justice Mazhar quipped in lighter vein that such secrets should not be revealed here anymore.

Justice Hilali observed that when she was the chief justice of the Peshawar High Court (PHC), she used to visit jails regularly, adding that generally, she would not be allowed to go near those convicted by military courts.

Meanwhile, the Punjab government submitted a report to the Supreme Court that stated that 27 out of 28 convicts were in the jails in Punjab, who were being given all the facilities as per the Jail Rules, 1978, including three quality meals daily, beds and blankets, as well as meeting with their families on Fridays.