The Supreme Court on Wednesday resumed hearings on an internal appeal challenging the military’s trials of civilians, with Justice Jamal Mandokhail noting that the suspects in the May 9 incidents have no connection to the armed forces. A seven-judge bench headed by Justice Aminuddin Khan is handling the case. Advocate Khawaja Haris, representing the Ministry of Defence, opened the arguments and argued that the court’s earlier decision hinged on Art. 8 paragraph 5 and Art. 8 paragraph 3 Constitutions which, according to him, are different and cannot be combined. Justice Mandokhail invited Haris to continue his arguments and said, “Your point was understood yesterday; now proceed to complete the remaining arguments.” Haris read from the decision to abolish civilian trials in military courts and pointed to the precedent in the FB Ali case, arguing that the judgment allowed civilian trials under military jurisdiction. However, he argued that the interpretation of Art. 8 paragraph 3 and Art. 8 paragraph 5 was erroneous in the majority judgment. The defense counsel emphasized that FB Ali’s case was unique and involved a retired officer prosecuted after retirement when he was a civilian. Judge Mandokhail responded: “In this case, the May 9 suspects have no links to the armed forces. They are neither ex-servicemen nor civilians with military links.” Hearings continue as the court examines the constitutionality of military trials of civilians. During a previous hearing, Jamal Khan Mandokhail said that according to the constitution, the executive arm of the state cannot exercise the function of judiciary and that the Pakistan Army Act of 1952 applies only to the personnel of the armed forces. When the seven-judge CB resumed hearing the appeal on Tuesday, Chief Justice Aminuddin Khan announced that the court would hear the military courts case only on Tuesday and Wednesday (today) and directed the registry office to remove all other cases. During the hearing, advocate Khawaja Haris argued that the SC had earlier ruled that civilians under the military’s jurisdiction could be court-martialed. Justice Mandokhail asked him who was the affected party or appellant in the May 9 cases. Haris replied that the proponent was the Ministry of Defence. Justice Mandokhail questioned whether an executive body like the defense ministry could act as both a judge and a decision-maker in a case before it, adding that there was a clear separation of powers 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 can decide if no other forum is available. Justice Mandokhail noted that Anti-Terrorism Courts (ATCs) already exist as a legal forum. He asked how the executive could assume a judicial role in their presence. He said that the Pakistan Army Act, 1952 is specifically limited to members of the armed forces. He also questioned whether Art. 8 paragraph 3 of the Constitution, which relates to discipline in the army, may 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 cases in civilian courts on the basis of fundamental rights. He added that Pakistan has already experienced martial law for 14 years and that army law applies when civilians interfere with the duties of the armed forces. Justice Mandokhail questioned whether a civilian attempt 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 struck down some provisions of the Pakistan Army Act 1952, while declaring the trial of civilians in military courts illegal. Justice Musarrat Hilali pointed out the significance of Justice Mandokhail’s question about where disputes with civilians at military checkpoints should be heard. Justice Mazhar said the Army Act specifies the crimes it covers. Judge Hilali expressed concern about expanding powers to try civilians. She said it remains to be determined whether such processes are constitutional. At the end of the session, Hafeezullah Niazi, the father of Imran Khan’s nephew Hassaan Niazi, addressed the court to express concern over the conditions of the 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. Justice Mazhar said that these May 9 rioters were now convicted prisoners and asked why they were denied their rights under the prison manual. The court ordered the Punjab government to respond to the allegations. Hafeezullah Niazi told the CB that while sentences ranging from 2 to 10 years were given, no detailed reasons for the sentences were given. Justice Hilali asked if the reasons for the judgments were actually denied. Justice Mazhar advised Niazi to present his arguments at an appropriate time. Negotiations are due to continue today (Wednesday). It should be noted that on 23 October 2023, a five-judge panel of the Supreme Court unanimously declared the trial of civilians before military courts invalid and ordered that the 103 accused in cases related to the 10 September 2023 violence be tried under the proper 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 internal court appeal against the verdict, and on December 13, 2023, the six-member ÚS Senate suspended the October 23 regulation by a vote ratio of 5 to 1.
