- Top court asks if spies would be tried in military courts in future.
- Justice Mandokhail stresses wrongful punishment of innocents.
- Hearing on civilian military trials adjourned until 3 February.
The Supreme Court’s Justice Hasan Azhar Rizvi has stressed the need for reforms not only in the anti-terrorism court but also in all other courts for the improvement of the judiciary.
The remark came during the hearing of the intra-court appeal against the trial of civilians in military courts, by a seven-member constitutional bench of the apex court on Friday.
The bench, headed by Justice Aminuddin Khan — comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal — questioned the distinction between civilians involved in the May 9 riots and those responsible for the December 16 attacks.
Khawaja Ahmad Hussain — the counsel for former chief justice Jawad S Khawaja — who opposed the military trials, presented arguments in today’s hearing.
He said that civilians do not fall under military trials. The counsel also clarified that he is not entirely challenging the Army Act but only a specific aspect of it. He pointed out that Justice Muneeb Akhtar had also referred to the same argument in his verdict.
At this, Justice Jamal Khan Mandokhail said that there was a dispute over different possibilities in the FB Ali case.
“Nowadays, there is also a viewpoint that if a political party engages in such actions, what should be done,” he remarked, recalling his observation from yesterday’s hearing where he had mentioned the Mehran Base attack and a few other incidents.
Justice Hilali said that the court was convinced during the previous hearing that military trials ensure a fair trial. This was when she asked about the difference between the individuals involved in the May 9 riots and the attack on Army Public School, Peshawar, on December 16, 2014.
In response, Hussain stated that the individuals involved in the APS attack were linked to acts of terrorism. He explained that an amendment had to be made to facilitate their trials, after which the accused were prosecuted.
The lawyer further said that the Pakistan Army Act applies to civilian employees of the armed forces.
At this point, Justice Rizvi questioned, “Does the Army Act apply to those who attack airbases?”
Responding to the query, Hussain referred to the Inter-Services Public Relations’ (ISPR) statement regarding the May 9 incidents. He noted that the military’s media wing had issued a statement on May 15, 2023, about the events of May 9. He clarified that he had no objection to the statement but highlighted that it expressed grief and sorrow within the institution over the incident. The statement also mentioned the presence of undeniable evidence regarding the May 9 events.
“How can a fair trial be ensured in a military court after such a statement?” he asked.
The lawyer emphasised that their case is not beyond the Constitution. He said that the May 9 suspects should be prosecuted, but not in military courts, arguing that an “affected party cannot ensure a fair trial.”
Here, Justice Mazhar noted that nullifying Section 2(1)(d)(2) of the Army Act could impact cases like the Indian spy Kulbhushan Jadhav case.
At this, Justice Rizvi asked where anti-state spies would be tried in the future if the clause was removed.
Lawyer Hussain responded that such cases should be handled by anti-terrorism courts instead.
Justice Aminuddin expressed concern over legal contradictions, saying: “It is strange to strike down a legal provision while allowing exceptions for special cases.”
Justice Mazhar further questioned whether Pakistan’s armed forces could still use Section 2(1)(d)(2) in the future, to which Hussain replied that it would no longer apply.
He also pointed out restrictions in military trials, arguing that in a Field General Court Martial (FGCM), the accused cannot choose a lawyer of their own preference. He explained that in court-martial proceedings, legal representation is provided only with the approval of the army chief. If the army chief does not grant permission, the accused cannot hire a lawyer of their choice.
He further argued that one authority makes the decision, while another confirms it. He warned that under such a system, the confirming authority could overturn a “not guilty” verdict and declare the accused guilty instead.
At this point, Justice Hilali remarked: “You are arguing on behalf of the suspects who are not even present before us.”
Meanwhile, Justice Rizvi said: “According to you, a civilian should not be tried in a military court but in an anti-terrorism court. Currently, two and a half provinces of the country are affected by terrorism. There is no Mukti Bahini movement in the country; the attackers are also civilians.”
Justice Mandokhail then said that preventing terrorism is the responsibility of the administration. “It is their duty to collect evidence. If the court does not have evidence before it, how can it deliver a verdict? Then people claim that Pakistan’s judiciary ranks 123rd in the world,” he added.
At this point, Justice Rizvi said that reforms are essential for improvement, whether it is an anti-terrorism court or any other.
Justice Mandokhail here remarked that it was a greater injustice to punish one innocent person than to let 100 guilty individuals go free. “Our role is only to make a decision; true justice is in the hands of God.”
At this, Justice Rizvi remarked that even if a murder is committed in front of everyone, no one comes forward to testify. “Witnesses are not provided protection, and in murder cases, lawyers take as many as 25 hearing dates.”
Justice Mandokhail also questioned whether the 21st Constitutional Amendment — which was enacted for four years and under which special courts were established — had been beneficial.
Later, the court adjourned the hearing of the case regarding the trial of civilians in military courts until February 3.
