• Govt lawyer says no serving military officers charged over damage to installations, claims institution ‘showed restraint’ during unrest
• Khawaja Haris insists ‘mastermind’ of violent protests will also be tried by military court
ISLAMABAD: Justice Syed Hasan Azhar Rizvi, a member of the Supreme Court’s Constitutional Bench, wondered on Tuesday whether any army official had been held accountable for the security breach during the May 9 protests that targeted military installations, including the Lahore corps commander’s residence.
He also asked whether any measures, not necessarily by resorting to firing, were taken to resist or prevent protesters from damaging military properties. “After all, there must be some mastermind behind the conspiracy,” he observed.
Justice Rizvi made these observations during the hearing of intra-court appeals (ICAs) against the Supreme Court’s Oct 23, 2023, five-judge order that nullified the trial of civilians by military courts in connection with the May 9 violence. The case is being heard by a seven-judge Constitutional Bench.
Senior counsel Khawaja Haris Ahmed, representing the Ministry of Defence, informed the court that no serving military officers had been charged over the destruction of military installations. He stated that the armed forces exercised restraint as the protesters did not kill or harm any individuals during the violence.
The counsel explained that even in peacetime, civilians who interfere with military operations or target defence assets could be tried by military courts. He added that the trial of the conspirator or the mastermind would also be conducted by the military court.
He said that in peacetime, the military was preparing different war strategies, and any encounter, attack or offence against them would be considered a war crime.
“Impairment of duty by the military personnel, even in peacetime, was as severe a crime for violating the sanctity of the defence workplace and endangering the security of the country,” he said.
Justice Musarrat Hilali raised a hypothetical question about whether a civilian attempting to steal a soldier’s rifle would fall under military jurisdiction, even though their intention was not to disarm the army personnel.
She further questioned whether the May 9 protesters fully understood the gravity of their actions or were simply going with the flow.
The counsel explained that such protesters were never tried by the military courts, adding that the intention of any offender would be determined through their conduct and manner of handling things.
Referring to the F.B. Ali case, Justice Rizvi observed that the facts of the case dealt with the time when there was a civil martial law, and since then, an attempt was made to remove Zulfikar Ali Bhutto, who was then the civil martial law administrator.
Justice Jamal Khan Mandokhail observed that it was the Supreme Court’s job to determine whether whatever was written in Section 2(1)(d)(i) and (ii) of the Pakistan Army Act (PAA) was right or wrong.
The sections in question allow for court martial of civilians accused of seducing army officers from their duties or committing offences related to defence establishments.
In its Oct 23, 2023, judgement, a five-judge Supreme Court bench declared these sections as ultra vires (beyond the powers) of the Constitution.
Justice Mandokhail also expressed reservations about expanding the scope of the OSA by integrating it into the PAA without constitutional justification. He questioned whether such an expansion is permissible under the Constitution.
The counsel cited the 1999 Sheikh Liaquat Hussain case, arguing that the Supreme Court had previously upheld military court trials for civilians with a nexus to the armed forces or national defence.
Published in Dawn, January 15th, 2025
