SC questions military trial of May 9 accused

A seven-member constitutional bench, headed by Justice Aminuddin Khan, presided over the hearing.

Listen to article

The Supreme Court has raised concerns about the government's reasoning for prosecuting some civilians in military courts while others involved in the same May 9 events face trial in anti-terrorism courts.

"Of the accused in the May 9 cases, 103 were tried in military courts, while the remainder are being prosecuted in anti-terrorism courts," observed Justice Naeem Akhtar Afghan during Thursday's hearing.

The comments were made as a constitutional bench led by Justice Aminuddin Khan reviewed intra-court appeals challenging the trial of civilians in military courts.

A seven-member constitutional bench, led by Justice Aminuddin Khan, examines whether the military court trials align with Pakistan’s Constitution, particularly when fundamental rights were not officially suspended.

Justice Musarrat Hilali pointed out that no emergency had been declared when the accused were taken into military custody, questioning the legal basis for their trials under military law.

“Were fundamental rights suspended at that time? If not, can civilians be tried in military courts under such circumstances?” she asked.

Justice Hassan Azhar Rizvi raised concerns about the severity of the charges. “Is the 9 May incident more serious than acts of terrorism that merit their trial in military courts?” he asked.

Justice Rizvi referred to previous incidents, such as attacks on military installations, questioning the criteria for case allocation between military and anti-terrorism courts.

Justice Jamal Khan Mandokhail urged the government to strengthen anti-terrorism courts (ATCs) and civilian justice mechanisms.

“Why not empower civilian courts to handle such cases? Trials should be based on evidence and due process,” he remarked.

Justice Muhammad Ali Mazhar echoed the need for clarity, stating, “How are cases categorised for military courts versus ATCs? What principles guide this differentiation?”

Defence 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 suspending fundamental rights during emergencies, asserting it was irrelevant to the current military court cases.

Haris maintained that the military trials were necessitated by the nature of the crimes, which involved attacks on sensitive military installations. However, he faced pushback from the bench, with Justice 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 operatives like Indian spy Kulbhushan Jadhav, and domestic cases involving attacks on military facilities. Justice Rizvi referenced the GHQ attack and past incidents where military courts played a role, asking for clarity on the broader implications of these cases.

The court questioned whether military trials provide access to robust legal representation and evidence, as required in civilian courts. Justice Mandokhail raised doubts about the adequacy of evidence in military trials, highlighting concerns about transparency and fairness.

The court also discussed the conditions of detainees, with Punjab’s Additional Advocate General presenting reports on their treatment. He claimed that detainees were provided outdoor time, access to a canteen, and home-supplied mattresses.

Justice Musarrat Hilali warned against misrepresentations, stating, “If you provide inaccurate reports, we will summon the Jail Reforms Committee for independent verification.”

The hearing was adjourned until tomorrow, with Khawaja Haris expected to continue his defence of the military court trials. The case underscores growing tension over military courts’ role in Pakistan’s justice system and their impact on constitutional rights.

May 9 suspects not linked to military: SC judge

The Supreme Court on Wednesday resumed hearings on an intra-court appeal challenging the military court trials of civilians, with Justice Jamal Mandokhail remarking that the suspects from the May 9 incidents have no affiliation with the armed forces.

A seven-member constitutional bench, led by Justice Aminuddin Khan, is hearing the case. Advocate Khawaja Haris, representing the Ministry of Defence, initiated arguments, asserting that the court's earlier decision hinged on Article 8(5) and 8(3) of the Constitution, which he argued are distinct and cannot be conflated.

Justice Mandokhail urged Haris to move forward with his arguments, stating, "Your point was understood yesterday; now, proceed to complete the remaining arguments."

Reading from the decision nullifying civilian trials in military courts, Haris pointed to the precedent set in the FB Ali case, asserting that the ruling permitted civilian trials under military jurisdiction. However, he contended the interpretation of Articles 8(3) and 8(5) was flawed in the majority judgment.

The defence lawyer emphasised that FB Ali’s case was unique, involving a retired officer prosecuted post-retirement when he was a civilian. Justice Mandokhail responded, "In the present case, the May 9 suspects have no ties to the armed forces. They are neither ex-servicemen nor civilians with military links."

The hearing continues as the bench examines the constitutional validity of military court trials for civilians.

During previous hearing, Jamal Khan Mandokhail said that under the Constitution the executive branch of the state cannot perform the function of judiciary and that the Pakistan Army Act, 1952 applies only to armed forces personnel.

When the seven-member CB resumed hearing the appeals on Tuesday, the head of the bench, Justice Aminuddin Khan, announced that the court would only hear the military courts case on Tuesday and Wednesday (today) and ordered the registrar office to delist all the other cases.

During the hearing, the counsel for the Ministry of Defense's counsel, Khawaja Haris, argued that the SC previously ruled that civilians under the military's jurisdiction can be court-martialed.

Justice Mandokhail asked him as to who was the affected party or 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 both judge and decision-maker in a case involving itself, adding that there is a clear separation of powers outlined in the Constitution.

"The Constitution prohibits the executive from performing judicial functions, which is a fundamental constitutional issue in cases involving military courts," he noted

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 their 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 pertains 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 joining the armed forces cannot challenge matters in civil courts under fundamental rights. He added that Pakistan has experienced martial law for 14 years and that the Army Act applies to cases where civilians interfere with the duties of the armed forces.

Justice 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 overreach.

Justice Muhammad Ali Mazhar observed that the case has two aspects: the SC in October 2023 annulled certain provisions of the Pakistan Army Act, 1952 while also declaring the trial of civilians in military courts illegal.

Justice Musarrat Hilali pointed out the significance of Justice Mandokhail's question regarding where disputes involving civilians at military checkpoints should be tried. Justice Mazhar stated that the army act specifies the crimes it covers.

Justice Hilali raised concerns about extending powers to try civilians. She said there is a need to determine whether such trials are constitutional.

At the end of the session, Hafeezullah Niazi, the father of Imran Khan's nephew Hassaan Niazi, addressed the court, expressing concerns 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 under the jail 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 the CB that while sentences of 2 to 10 years were handed down, no detailed reasons for the judgments were provided.

Justice Hilali asked whether reasons for the judgments were indeed withheld. Justice Mazhar advised Niazi to present his arguments at the appropriate time. The hearing is set to continue today (Wednesday).

It must be noted that on October 23, 2023, a five-member bench of the Supreme Court unanimously declared the trial of civilians in military courts null and void and ordered that the 103 accused in cases related to the violence on May 9 and 10, 2023 be tried under the ordinary criminal laws.

The court, by a 4-1 majority, also declared certain clauses of the Pakistan Army Act, 1952, ultra vires the Constitution.

The government later filed an intra-court appeal against the verdict, and a six-member SC bench, on December 13, 2023, by a vote of 5 to 1, suspended the October 23 order.