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

“Of the accused in the May 9 cases, 103 were tried in military courts, while the rest are being tried in anti-terrorism courts,” Judge Naeem Akhtar Afghan noted during Thursday’s hearing.

The comments were made as a constitutional court headed by Justice Aminuddin Khan reviewed appeals within the courts challenging the trial of civilians in military courts.

A seven-member constitutional court, headed by Justice Aminuddin Khan, is examining whether the trials at the military courts are in line with Pakistan’s constitution, especially when fundamental rights were not officially suspended.

Judge Musarrat Hilali pointed out that no state of emergency had been declared when the accused were taken into military custody and questioned 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.

Judge Hassan Azhar Rizvi raised concerns about the seriousness of the charges. “Is the May 9 incident more serious than acts of terrorism that deserve their trial by military courts?” he asked.

Judge Rizvi referred to past incidents, such as attacks on military installations, and questioned the criteria for dividing cases between military and anti-terror courts.

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

“Why not empower civil courts to hear such cases? Trials should be based on evidence and due process,” he noted.

Justice Muhammad Ali Mazhar reiterated the need for clarity, stating: “How are cases for military courts versus ATCs categorized? What principles govern this differentiation?”

Defense Ministry lawyer Khawaja Haris argued that the lawsuits were constitutional and did not violate Supreme Court rulings.

He questioned Article 233, which deals with the suspension of fundamental rights in emergency situations, and argued that it was irrelevant to the current military court proceedings.

Haris maintained that the military trials were necessitated by the nature of the crimes, which involved attacks on sensitive military installations. However, he faced backlash 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 agents such as Indian spy Kulbhushan Jadhav and domestic cases involving attacks on military facilities. Justice Rizvi referred to the GHQ attack and previous incidents in which military courts played a role and asked for clarity on the wider implications of these cases.

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

The court also discussed the conditions of the detainees, with the Additional Advocate General of Punjab submitting reports on their treatment. He claimed prisoners were given outdoor time, access to a canteen and home-delivered mattresses.

Judge Musarrat Hilali warned against misrepresentation, saying: “If you give inaccurate reports, we will call in the Prison Reform Committee for independent verification.”

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

May 9 suspects not linked to the military: SC judge

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

A seven-member Constitutional Court, headed by Justice Aminuddin Khan, is hearing the case. Lawyer Khawaja Haris, representing the Ministry of Defence, opened arguments, arguing that the court’s earlier ruling relied on Article 8(5) and 8(3) of the Constitution, which he argued are separate and cannot be conflated.

Justice Mandokhail urged Haris to proceed with his arguments, saying, “Your point was understood yesterday; now proceed to complete the remaining arguments.”

After reading the decision to nullify civilian trials by military courts, Haris pointed to the precedent of the FB Ali case and argued that the judgment allowed civilian trials under military jurisdiction. However, he argued that the interpretation of Article 8, para. 3, and Article 8, subsection 5, was deficient in the majority decision.

The defense lawyer emphasized that FB Ali’s case was unique, involving a retired officer who was prosecuted after retirement when he was a civilian. Judge Mandokhail replied: “In the present case, the suspects of May 9 have no ties to the armed forces. They are neither ex-servicemen nor civilians with military connections.”

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

During earlier hearing, Jamal Khan Mandokhail said that according to the constitution, the executive branch of the state cannot perform the function of judiciary and that 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 court, Justice Aminuddin Khan, announced that the court would first hear the military court case on Tuesday and Wednesday (today) and ordered the registrar’s office to remove all other cases.

During the hearing, defense ministry lawyer Khawaja Haris argued that the SC has previously ruled that civilians under the military’s jurisdiction can be court-martialled.

Justice Mandokhail asked him who was the affected party or appellant in the May 9 cases. Haris replied 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 branch from exercising judicial functions, which is a fundamental constitutional issue in cases involving military courts,” he noted.

Haris said the executive could take 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 that the Pakistan Army Act, 1952, is expressly limited to members of the armed forces. He also questioned whether Article 8, paragraph 3, of the constitution, which relates to discipline within the military, could include criminal proceedings. He said the constitution refers to “citizens of Pakistan”, not just civilians.

Haris argued that civilians who join the armed forces cannot challenge cases in civilian courts under fundamental rights. He added that Pakistan has experienced martial law for 14 years and that army law applies to cases where civilians interfere with the duties of the armed forces.

Judge Mandokhail questioned whether a civilian trying to cross a military checkpoint would also constitute interference under this broad interpretation, suggesting that such a definition could lead to overstepping.

Justice Muhammad Ali Mazhar noted 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 about where disputes involving civilians at military checkpoints should be tried. Judge Mazhar stated that the army act specifies the crimes it covers.

Judge Hilali raised concerns about expanding powers to prosecute civilians. She said there is a need to determine whether such lawsuits 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 sentenced by military courts in Lahore last week.

He said these prisoners, including his son Hassan Niazi, were allegedly held in a high-security zone with no rights according to the prison manual. Judge Mazhar said these May 9 rioters are now convicted prisoners and asked why they are being denied their rights under the prison 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 were given for the sentences.

Judge Hilali asked if the reasons for the sentences were actually withheld. Justice Mazhar advised Niazi to present his arguments at an appropriate time. The hearing continues today (Wednesday).

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

The court also declared by a majority of 4-1 that certain sections of the Pakistan Army Act, 1952 violate the Constitution.

The government later filed an internal appeal against the judgment and a six-member SC bench on 13 December 2023 by a vote of 5 to 1 stayed the 23 October order.