ISLAMABAD – The Supreme Court’s constitutional bench voiced serious concerns regarding the trial of civilians participated in the May 9 events, especially the reasoning for transferring certain suspects to military courts while others were prosecuted in anti-terrorism courts.
The seven-member constitutional bench, led by Justice Aminuddin Khan and comprising Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan, resumed hearing the case involving civilian trials in military courts.
During the hearings, Ministry of Defence attorney Khawaja Haris contended that the decision to hold military tribunals for civilians was based on an inaccurate reading of Article 233, which dealt with the suspension of basic rights during an emergency.
He stressed that basic rights could only be suspended in an emergency, as was the case during Gen Pervez Musharraf’s reign.
Justice Muhammad Ali Mazhar argued that this case did not constitute the suspension of basic rights. He emphasized that during Musharraf’s tenure, rights were suspended owing to a lack of the ability to appeal.
Justice Aminuddin Khan questioned if an emergency had been proclaimed in this instance, prompting Justice Mazhar to clarify that the suspension of basic rights necessitated an emergency.
Justice Musarrat Hilali stated that in the current instance, the accused’s fundamental rights were not suspended, nor was an emergency proclaimed when they were put into military custody.
Justice Musarrat Hilali inquired as to who decided the jurisdiction for military court trials and how the distinction was formed between matters that progress in ATCs and those assigned to military tribunals.
Justice Muhammad Ali Mazhar observed that all suspects in the May 9 incidents were charged under similar FIRs and questioned why some were subjected to military trials while others faced ATCs.
Justice Naeem Akhtar Afghan inquired whether there was an ATC order transferring detainees to military tribunals and wanted clarification on the procedure for bringing suspects into military custody.
Attorney Jamal Mandokhail requested an explanation of the concepts and methods used to decide jurisdiction in cases. He further stated, “An offender is acquitted in an Anti-Terrorism Court (ATC) but later condemned by a military court. Is there any unique evidence provided in military tribunals that is not considered in civilian courts?
The bench also expressed worry about a lack of legal precedent for civilians being tried in military tribunals in the absence of constitutional protections such as rights suspension.
Justice Hilali questioned whether there were any examples of civilians being prosecuted in military courts without an emergency declaration.
Justice Hasan Azhar Rizvi said that prior terrorist attempts on military sites, like as the conspiracy to hijack an army chief’s jet, were prosecuted in civilian tribunals. He questioned what made the May 9 occurrences unique enough to merit military court prosecutions.
Justice Mandokhail proposed that instead of referring cases to military tribunals, ATCs be reinforced to handle such situations. He emphasized that ATCs rely on evidence and voiced concerns about the procedure and openness of military courts.
The court demanded FIRs for all cases relating to the May 9 incidents, as well as detailed ATC orders transferring suspects to military courts.
Justice Afghan reported that 103 accused in the May 9 cases were prosecuted in military tribunals, while the others remained in ATC courts. He inquired as to how such differences were formed, emphasizing the need of transparency in the criteria utilized for case allocation.
The bench stated that trial-related judgments must be evidence-based and legally sound. It emphasized the need for a clear legislative framework to promote openness and impartiality in the judicial process.
The Supreme Court has postponed the hearing on the intra-court appeal against military court trials of civilians until tomorrow.
The bench is anticipated to hear further arguments from Khawaja Haris as the case progresses.
