Military trial for civilians: judge asks difference between APS attackers, civilians in May 9 protests
Justice Musarrat Hilali, one of the seven judges of the Supreme Court’s constitutional bench, has questioned the difference between the Army Public School attacker and the civilians involved in the May 9 protests.
She said as the bench met on Friday to resume hearing a series of intra-court appeals against the military trial of civilians.
The Justice Aminuddin Khan-led bench is reviewing appeals challenging the October 23, 2023, decision made by a five-judge bench. This earlier ruling annulled the military court trials of civilians who were implicated in the violence that occurred on May 9.
The bench comprises justices Aminduddin Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Shahid Bilal Hassan and Naeem Akhtar Afghan.
Advocate Khawaja Ahmad Hussain presented arguments on behalf of former Justice (retd) Jawad S Khawaja.
On Thursday, defence ministry lawyer Khawaja Haris completed his arguments while the lawyers for the Punjab government, Balochistan government, Ministry of Interior, Ministry of Law, and Shuhada Foundation adopted the defence ministry’s counsel’s arguments.
At the outset of the hearing, Advocate Ahmad stated that ordinary civilians were not subject to the Military Act; however, the Army Act “applies to civilian employees” of the Pakistan Army.
Justice Rizvi inquired whether the Army Act applied in cases of attacks on airbases.
At one point, Justice Hilali inquired about the differences between the terrorist attack on the APS and the protests on May 9, asking what distinguishes the civilians involved in both incidents. To this, Ahmad responded that the APS attack was a terrorist incident after which the 21st Constitutional Amendment was made.
Justice Khan stated that there was no second opinion that no law could remain if it was contrary to the Constitution.
Lawyer Hussain referred to the press release issued by the Pakistan Army regarding the events of May 9, stating that the ISPR released a statement on May 15. The court inquired whether he had any objections to the statement.
In response, Advocate Khawaja Ahmad Hussain affirmed that he had no objections to the statement, which indicated that there was a sense of grief and pain throughout the institution over the May 9 incident and that there was undeniable evidence regarding the event.
While referencing the Pakistan Army’s statement on the May 9 incident, Advocate Hussain noted that the announcement indicated a “sense of grief and pain” throughout the institution. He questioned how a transparent trial could be conducted when those involved were themselves affected by the situation.
Justice Khan pointed out that the example of Indian spy Kulbhushan Jadhav was before them, a case where only the Pakistan Army was not affected. Justice Mazhar remarked that declaring Section 2(1)(d) of the Army Act unconstitutional would prevent military trials in cases like Jadhav. He raised a concern about where a trial would take place if a foreign spy were captured in the future.
In response, Advocate Hussain asserted that such a trial would occur in an Anti-Terrorism Court. Justice Hassan Azhar Rizvi responded with a smile, acknowledging the argument.
Justice Khan expressed concern over the oddity of declaring a section of the law unconstitutional while simultaneously stating that those seeking special remedies were exempt. Justice Mazhar raised a question about whether the Pakistan Army could still utilise Section 2(1)(d) of the Army Act in the future.
Justice Rizvi inquired how trials for defendants would be conducted if Section 2(1)(d) were declared null and void, especially given that some provinces in the country were grappling with terrorism.
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The lawyer responded by asserting that it was true that Section 2(1)(d) would not be usable in the future. Justice Khan remarked that the law has been dismissed based merely on assumptions.
In the hearing, Justice Mandokhail criticised the decision to declare Section 2(1)(d) of the Army Act unlawful based on assumptions. He pointed out that no court has challenged such a section since the FB Ali case, questioning why it has been deemed illegal.
Hussain noted that in a Field General Court Martial, defendants do not have the right to choose their counsel. Justice Hilali inquired whether the defendants’ case was being argued here when it was not before the court.
Justice Mandokhail emphasized that preventing terrorism was the responsibility of the administration, which must gather evidence. He questioned how the court could make decisions without evidence presented before it, reflecting on why Pakistan’s judiciary ranks 130th.
Justice Rizvi added that whether it was an ATC or any other court, reforms were essential for improvement. The next hearing of the case is scheduled for Monday.
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