Justice Ameen-ud-Din Khan: “We cannot create something new. We will either dismiss or accept the appeal. There must be reasons for the decision.”
Justice Jamal Khan Mandokhel: “The only question before us is on whom the Army Act will apply.”
Justice Muhammad Ali Mazhar: “Can five judges declare the decision of the bench null and void? No military personnel has ever challenged the law.”
Justice Musarrat Hilali: “There should be a distinction between an attack and a protest. The 21st Amendment was made in the context of the APS incident, and it has no connection to the events of May 9.”
ISLAMABAD ( WEB NEWS )
During the hearing of petitions against civilian trials in military courts in the Supreme Court of Pakistan, Chief Justice of the Constitutional Bench, Justice Ameen-ud-Din Khan, stated that they were hearing an appeal in which certain provisions had been declared null and void. They need to review whether the decision is in accordance with the law. He emphasized that they are not creating something new and would either dismiss or accept the appeal. He added that the decision should have reasons provided. Justice Jamal Khan Mandokhel remarked that if military courts are criminal courts, then the process must be considered. The accused also have rights, and even after sentencing, they retain rights in prison. Pakistan has signed international agreements in this regard. He questioned why there is a difference between a terrorist attacking Parliament, the Supreme Court, and GHQ, with the case being heard in an anti-terrorism court if the attack is on Parliament or the Supreme Court, and in a military court if the attack is on GHQ. He added that the issue is about the applicability of the Army Act.
Justice Muhammad Ali Mazhar remarked that it is irrelevant whether an accused person can receive bail while their trial is ongoing in a military court. He questioned whether five judges could declare the decision of another bench null and void. He also mentioned that no military personnel has ever challenged the law. Justice Syed Hassan Azhar Rizvi inquired about the difference between someone involved in espionage against the country and an ordinary civilian, asking if the lawyer should make that distinction in their arguments. He further questioned how bail can be granted in speedy trials within 10 to 15 days.
Justice Musarrat Hilali remarked that the 21st Amendment was made in the context of the APS incident, and it had no relation to the events of May 9. She raised the question of under what law military courts gained jurisdiction over the accused of the May 9 incidents. She stated that there should be a distinction between an attack and a protest, as an attack typically involves armed aggression.
The seven-member constitutional bench, headed by Justice Ameen-ud-Din Khan, also included Justices Jamal Khan Mandokhel, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan. They heard 39 review petitions against civilian trials in military courts. Former Chief Justice of Pakistan, Justice Jawad S. Khawaja’s lawyer, Khawaja Ahmed Hussain, began his arguments. Khawaja stated that an accused cannot be granted bail until the military court completes its trial. Justice Syed Hassan Azhar Rizvi further questioned how bail could be granted in such cases.
During the arguments, Khawaja Ahmed Hussain highlighted that the Supreme Court had declared the process for civilians to be unconstitutional, as the military judge and jury system was involved. He also argued that if the bench changes this decision, it would be a deviation from basic and universal principles, including fair trial rights under Article 10-A and due process. Justice Syed Hassan Azhar Rizvi asked whether someone working with enemies of the country should be treated the same as an ordinary civilian, urging the lawyer to make a distinction in their arguments.
Justice Ameen-ud-Din Khan reiterated that they are hearing an appeal in which certain provisions were declared void, and they need to examine whether the decision is legally correct. He added that they are not creating something new and would either dismiss or accept the appeal based on the merits. Khawaja Ahmed Hussain, in his concluding remarks, said that the issue is related to public interest and the enforcement of fundamental rights.
The hearing was adjourned until the next day, and Khawaja Ahmed Hussain continued his arguments. Justice Jamal Khan Mandokhel remarked that a fine of 20,000 rupees was due on Khawaja. To which Khawaja responded that he had filed a review petition against the fine and requested its withdrawal.
Justice Muhammad Ali Mazhar stated that Justice Musarrat Hilali was suggesting that the fine should be doubled. Khawaja Ahmed Hussain remarked that their petition had largely become ineffective, as the constitutional bench had already heard most of the case. Justice Ameenuddin Khan, after consulting with fellow judges, communicated to Khawaja Ahmed Hussain that the court would dispose of the case based on the withdrawal of the review petition. Later, the constitutional bench withdrew the order imposing a fine on the former Chief Justice.
Meanwhile, regarding a case involving a military court convicting a defendant, Arzam Junaid, for the events of May 9, his father, Junaid Razak, along with other representatives, including Pakistan Tehreek-e-Insaf’s Secretary General, Salman Akram Raja, argued that while he was also the lawyer for Aitzaz Ahsan, Latif Khosa would present the arguments for him. Justice Jamal Khan Mandokhel commented that making laws is the responsibility of Parliament, and questioned whether a trial could take place, and to what extent it could occur. Justice Muhammad Ali Mazhar pointed out that if a mistake occurs, Article 10-A of the Constitution provides protection in such matters.
Salman Akram Raja argued that the fundamental principle is that an innocent person should not be punished, even if it means letting 100 guilty individuals go free. Justice Jamal Khan Mandokhel asked about the difference between Articles 8-3 and 175-3 of the Constitution. Justice Muhammad Ali Mazhar mentioned that there was no alignment in the decisions of Justice Muneeb Akhtar and Justice Ayesha A. Malik. Justice Ameenuddin Khan emphasized that decisions should have reasons behind them. Salman Akram Raja stated that the court was interpreting the Constitution for the nation.
Salman Akram Raja also stated that there are only two or three countries in the world where civilians are tried in military courts, including Pakistan. In response, Justice Muhammad Ali Mazhar mentioned that 18 or 19 countries globally conduct trials of civilians in military courts. He further pointed out that no military personnel has ever challenged the law. Justice Naeem Akhtar Afghan remarked that when the jurisdiction of the military court was invoked for the accused Arzam Junaid, this decision was not challenged in the High Court under Article 199 of the Constitution, where it could have been.
Justice Muhammad Ali Mazhar noted that there was inconsistency in Salman Akram Raja’s arguments, as he was advocating for a fair trial while also discussing conspiracy. Salman Akram Raja stated that Article 175-3 came into effect in 1987, after which there is no room for executive courts. Justice Muhammad Ali Mazhar responded that executive courts still exist today.
Salman Akram Raja further argued that in India, if both military and civilian personnel are involved in an incident, the trial takes place in civilian courts. Military courts, he said, are a form of executive courts. He questioned how 103 people were taken for military trials without any clear reasons provided. In response, Justice Ameenuddin Khan clarified that this issue was not before the court. Salman Akram Raja argued that this case was indeed before the court, with orders of custody and the request from the commanding officer for detainees, but no reasons were given for it. He stated that the commanding officer should have applied judicial oversight before handing over civilians.
Justice Musarrat Hilali questioned the legal process and how the handover should have been done. Salman Akram Raja argued that a reasonable request should have been made. Justice Syed Hassan Azhar Rizvi asked whether any investigative report had been presented to the court. Salman Akram Raja responded that no such report had been presented.
Salman Akram Raja emphasized that globally, military trials of civilians are considered an attack on the Constitution. He expressed surprise at how Khawaja Haris interpreted the F.B. Ali case, which, according to him, does not suggest that fundamental rights do not apply to the provisions of the Army Act; in fact, the F.B. Ali case suggests the opposite.
Justice Jamal Khan Mandokhel addressed Salman Akram Raja, stating that he could not say that Khawaja Haris misinterpreted the F.B. Ali decision, but could rather say that, according to his understanding, it should be interpreted differently. Salman Akram Raja responded that he was facing 18 cases, including murder charges, and had to appear in an anti-terrorism court the next day. He said he would be arrested and his case might be taken to a military court, but he had no issue with presenting his arguments before the court.
Justice Ameenuddin Khan remarked that the court could not give observations in this regard. Justice Syed Hassan Azhar Rizvi suggested that Salman Akram Raja file a request for a stay. Meanwhile, Justice Muhammad Ali Mazhar told Salman Akram Raja to attend that hearing and return.
Salman Akram Raja insisted that he wished to argue in this case, even if he would be arrested afterward, as he had no concerns. Senior PTI leader, lawyer, and Member of National Assembly Sardar Latif Khan Khosa mentioned that he also had a hearing the next day.
The hearing of petitions against civilian trials in military courts will continue today (Tuesday). Salman Akram Raja will continue presenting his arguments.