SC questions lack of legal challenges to military trials – Pakistan

• Justice Afghan asks why no May 9 accused assailed military courts’ ambit
• Justice Rizvi wonders whether culprits of attacks on military sites were tried under army law
• Former CJP’s counsel questions why Indian spy was granted right to appeal, but not citizens

ISLAMABAD: Justice Naeem Akhtar Afghan on Thursday expressed surprise that none of the civilians tried by military courts for their alleged involvement in the May 9, 2023, attacks on military installations had challenged the jurisdiction of military courts in superior courts on grounds of mala fide intent, despite their cases being transferred from civilian courts.

“The right to institute a writ petition before the High Courtif due process is not adopted, cannot be denied despite a clear bar under Article 199(3) ofthe Constitution,” observed Justice Afghan, who is part of the seven-member Supreme Court bench hearing intra-court appeals (ICAs) against the Oct 23, 2023, ruling that nullified military trials for civilians involved in the May 9 violence.

While pointing towards senior counsel Khwaja Ahmad Hosain, representing former chief justice Jawwad S.

Khawaja, Justice Afghan observed that former CJP’s challenge to sections 2(1d)(i) and (ii) of the Army Act, which apparently makes civilians subject to the military courts, would survive if the court accepts his contention that the ouster clause provided in Article 8(3) of the Constitution was meant only for the military personnel, not civilians.

Justice Musarrat Hilali also questioned whether an accused could challenge the transfer of his case before the superior judiciary after his case was submitted before a military court.

On Thursday, senior counsel Khawaja Haris Ahmed, while representing the Ministry of Defence, concluded his arguments, whereas the court also allowed the Balochistan government to be represented through a private counsel, Sikander Bashir Mohmand,who simply adopted the arguments of Khawaja Haris.

Justice Syed Hasan Azhar Rizvi, addressing the defence ministry’s counsel, recalled previous terrorist attacks on sensitive military installations, such as the General Headquarters (GHQ) and Mehran Air Base, which resulted in the martyrdom of personnel posted there.

In one incident, he said, surveillance aircraft were destroyed, causing a loss of billions of rupees to the national exchequer.

He questioned whether the intensity of these incidents was not high and whether the perpetrators of these incidents were tried in the military or anti-terrorism courts.

Khawaja Haris said the GHQ attack case was tried in a military court.

When Justice Jamal Khan Mandokhail asked whether this trial took place before or after the 21st Amendment, Additional Attorney General Chaudhry Aamir Rehman clarified that the GHQ attackers were prosecuted under the 21st Amendment.

Meanwhile,the defence ministry’s counsel noted that the attackers of the Mehran Air Base were killed on the spot, eliminating the need for a trial.

He argued that the 21st Amendment was designed for crimes that did not fall under “interference in military affairs”.

Opposing the government’s stance, Khwaja Ahmad Hosain questioned why Pakistan had introduced a special law in 2021 to grant Indian spy Commander Kulbhushan Jadhav the right to appeal before the high court following a ruling by the International Court of Justice (ICJ), while denying the same legal recourse to Pakistani citizens.

Mr Hosain asserted that the trial of civilians should align with fundamental rights enshrined in the Constitution, arguing that military trial provisions ofthe Army Act went against the Constitution, particularly in light of Article 10A, which guarantees the right to a fair trial.

Mr Hosain contended that since civilian courts were fully operational, there was no justification for trying civilians in military courts.

He rejected the argument that past Supreme Court judgements, including F.B. Ali and Sheikh Liaquat Hussain, could be used as precedent for military trial of civilians.

“We are not demanding the release of those responsible for the May 9 attacks,” he clarified.

“Our argument is simply that they should be tried in civilian courts to uphold the rule of law.” The counsel also emphasised that a remedy in the shape of a writ petition before the high court was not a right of the accused, rather at the discretion of the court.

He said the fundamental right were well entrenched in the Constitution and could not be taken away. “But here in the present case, the minute a civilian was accused of the offence under sections 2(1d)(i) and (ii), the fundamental rights go away, and the mere accusation was enough to snatch these rights,” he contended.

He further argued that while members of the armed forces voluntarily give up certain rights under Article 8(3) of the Constitution, civilians do not, making the ouster clause inapplicable to them.

Published in Dawn, January 31st, 2025