Military court trials: SC questions difference between APS attack and May 9 protests

The Supreme Court's Constitutional Bench resumed its hearing over the appeals against the trial of civilians in military courts, during which Justice Musarat Hilali has questioned the difference between the 2014 APS attack and the May 9 protests.

The seven-member bench, led by Justice Ameenuddin Khan, heard arguments from Khawaja Ahmad Hussain, the lawyer representing Justice (R) Jawad S. Khawaja, Express News reported.

During the proceedings, Hussain argued that "ordinary civilians do not fall under the Army Act, which applies to Pakistan’s military personnel and civilian employees of the armed forces."

Bench examines fairness of military trials

Justice Hassan Azhar Rizvi inquired whether the Army Act applies to attacks on airbases. Justice Hilali added, "The APS attack was an act of terrorism, whereas May 9 was a protest. What differentiates the civilians involved?"

Khawaja Hussain explained that the APS attack led to the 21st Constitutional Amendment, enabling military trials of those responsible for terrorism.

"May 9 protesters should be trialed, but not in military courts," he argued. Justice Aminuddin Khan acknowledged that the court has the authority to review any legislation contradicting the Constitution.

Justice Musarrat Hilali remarked, "All the children killed in the APS attack were civilians."

"Can a Victim Be a Fair Judge?" Lawyer Challenges Military Trials

During the proceedings, Khawaja Ahmad Hussain referred to the May 9 statement issued by the ISPR, the media wing of the Pakistan Army. He stated, "ISPR released a statement on May 15 regarding the May 9 events. Do you have objections to the statement?"

The lawyer responded, "I have no objection to the first part of the statement. However, the statement asserts that there is irrefutable evidence of the May 9 incidents. How can a military trial be fair after such a statement? If the military is a party in the case, how can it ensure justice?"

Justice Musarrat Hilali remarked that the lawyer's arguments pertain to the merits of the case, while Justice Aminuddin Khan advised the lawyer to confine his arguments to legal matters.

The lawyer maintained, "A victim cannot conduct an impartial trial."

"Where Should Future Foreign Spies Be Tried?" Court Asks

Justice Hassan Azhar Rizvi inquired, "If a foreign spy is captured in the future, where should their trial be conducted?"

The lawyer responded, "Such cases should be handled by anti-terrorism courts."

Justice Rizvi smiled and remarked, "Oh really?"

Justice Aminuddin Khan pointed out an inconsistency in the arguments, stating, "It is strange to declare a law null and void while also saying that special remedies should still be available."

Justice Muhammad Ali Mazhar asked, "Can Pakistan's armed forces use Section 2(1)(d)(2) of the Army Act in the future?"

The lawyer replied, "The reality is that in the future, this section cannot be applied. I would like to continue with my arguments."

Comparison with Kulbhushan Jadhav case

The discussion also touched on Indian spy Kulbhushan Jadhav, with Justice Muhammad Ali Mazhar questioning how striking down Section 2(1)(d)(ii) of the Army Act could impact future espionage cases.

"If we invalidate this provision, where would trials for foreign spies be conducted?" Justice Rizvi asked. Hussain responded that such cases could be tried in anti-terrorism courts. Justice Rizvi, smiling, replied: "Alright then."

Justice Aminuddin found it contradictory that the petitioners sought to strike down the Army Act provision while also advocating for special exemptions.

Concerns over military court procedures

Hussain argued that Field General Court Martial (FGCM) trials do not allow accused individuals to choose their legal representation, stating: "In FGCM, a lawyer is appointed only with the Army Chief’s approval."

Justice Hilali asked if the lawyer was presenting arguments for the accused who were not in court.

Justice Mandokhail also referenced previous rulings, noting that the FB Ali case upheld key provisions of the Army Act, and that the 21st Constitutional Amendment was decided by a full bench of 17 judges.

The bench later adjounred the hearing until Monday February 3.