January 17, 2024
By Rana Malhi
ISLAMABAD
On Friday, the Supreme Court of Pakistan convened to deliberate an intra-court appeal challenging the trial of civilians in military courts – a controversial issue stemming from the violent incidents of May 9. The hearing was presided over by a seven-member constitutional bench led by Justice Aminuddin Khan.
The proceedings began with detailed arguments presented by Khawaja Haris, counsel for the Ministry of Defence. Haris defended the legality of the Army Act, arguing that it incorporates a comprehensive framework ensuring a fair trial.
However, when Justice Jamal Khan Mandokhel asked which decision of the military trial he agreed with, Khawaja Haris candidly replied, “I do not agree with any decision.”
Haris acknowledged differences with certain judicial perspectives, particularly the decisions rendered by Justice Ayesha Malik, Justice Muneeb Akhtar, and Justice Yahya Afridi. Justice Malik had previously declared Section 2(1)(d)(1) of the Army Act as inconsistent with the principles of a fair trial. Meanwhile, Justice Afridi refrained from offering a detailed opinion on the Army Act’s provisions but underscored his adherence to the decisions of larger benches in legal matters.
Justice Mandokhel inquired about the majority decision in the 21st Constitutional Amendment. Haris explained that eight judges upheld the amendment, each in their own way. He further asserted that the amendment’s legislation addressed various crimes and individuals, making military trials against terrorists possible.
The May 9 controversy
Justice Muhammad Ali Mazhar questioned the government’s rationale for convicting individuals implicated in the May 9 incidents through military courts while depriving them of the right to appeal. This question lies at the heart of the ongoing debate over the jurisdiction of military courts in civilian cases.
Justice Hassan Azhar Rizvi recounted the events of May 9, highlighting the targeted attacks on state properties, including the Corps Commander’s residence in Lahore, military offices, and the Radio Pakistan building in Peshawar.
“Previously, protests were limited to public places like the Governor House. For the first time, simultaneous attacks occurred across multiple cities,” he remarked. Justice Rizvi further noted, “This included attacks on military camp offices, and even tearing the uniform of a police officer, which constitutes a crime.”
Haris contended that these acts of violence could not be categorized as political protests. Meanwhile, Justice Mandokhel raised concerns about the appropriate jurisdiction for trying such crimes. He questioned why similar military trials had not been conducted during earlier attacks on institutions like Parliament.
“The Parliament is supreme,” he said. “If it was attacked, why was there no military trial? Does the Parliament not consider an attack on itself as an insult? Even the Supreme Court was attacked—this too was a serious matter.”
Judicial perspectives and evidence
During the session, Additional Attorney General Aamir Rehman informed the court about the timeline of judicial scrutiny over the Army Act. He pointed out that while initial discussions avoided examining specific provisions of the act, subsequent rulings declared key sections null and void.
Justice Mazhar expressed dissatisfaction over the perceived lack of a fair hearing for the Attorney General before these provisions were invalidated. Faisal Siddiqui, participating via video link, argued that the case should be assessed under constitutional principles rather than solely challenging the Army Act.
The court was also presented with photographic evidence documenting the May 9 incidents, which included scenes of vandalized state property. Justice Rizvi sought clarification on whether any military personnel suffered casualties during the attacks. Haris confirmed injuries and property damage inflicted by the armed assailants.
Justice Mazhar remarked that crimes are clearly defined in law books. “If the crime fits into the Army Act, the trial will be held in a military court,” he stated. However, Justice Mandokhel countered, noting that the 21st Amendment specifically states that cases involving political parties will not be tried in military courts. He also questioned whether military trials against terrorists could have been conducted without the 21st Amendment.
The bench announced its intention to dedicate a full day to the case on Monday. However, Haris requested an adjournment until Tuesday due to personal commitments. Justice Naeem Afghan emphasized the urgency of resolving the matter, noting that other cases had been delisted to expedite the proceedings.