Military trials: Can all civilians be treated like APS attackers, asks SC judge

• Defence ministry lawyer says precedent for civilians’ military trial set. 
• Justice Mandokhail says May 9 suspects weren’t even “ex-servicemen”. 
• Justice Musarrat Hilali says basic rights of Pakistani citizens remain intact. 
  

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ISLAMABAD: Supreme Court Justice Musarrat Hilali on Wednesday remarked that military trials were designed for culprits in cases like the Army Public School (APS) tragedy and questioned whether the same approach could be applied to all civilians.

The concern was raised during a hearing on intra-court appeals against the military trial of civilians, under Supreme Court’s constitutional bench, headed by Justice Amin-Ud-Din Khan. 

The lawyer representing Ministry of Defence, Khawaja Haris, who had been directed to continue his arguments from where he left in yesterday’s hearing, read out the apex court’s verdict that had declared the military trial of civilians null and void.

Haris argued that the precedent had already been established in previous cases that civilians could also be tried in military courts. He contended that the majority decision had misinterpreted Articles 8(3) and 8(5) of the Constitution.

Justice Jamal Khan Mandokhail responded to this with saying that the bench would see whether it agrees with the lawyer or not.

Haris argued that the interpretation wrongly suggested that the FB Ali case was of a different nature. He explained that Brigadier FB Ali was tried after retirement when he was a civilian.

Haris pointed out that the decision stated FB Ali had not retired at the time of the offence, making his case unique.

At this, Justice Mandokhail noted that the accused in the current case, linked to the events of May 9, had no connection to the armed forces.

“Nowadays, there is a term ‘ex-servicemen,’ but these individuals weren’t even ex-servicemen,” he said, explaining that they were just civilians.

He went on by asking whether civilians could be tried under the Army Act and whether this applied only to specific citizens.

Haris responded by saying that the general perception was different, but Justice Mandokhail urged him to ignore public opinion and directly address whether civilians could be tried in military courts.

Here, Justice Hilali inquired whether all fundamental rights would be suspended when the Army Act is applied, while Justice Mohammad Ali Mazhar asked about international practices, asking the defence ministry’s counsel if he had any examples to provide.

At this, the lawyer confirmed that he had examples and would present them later.

Justice Mazhar also pointed out that laws in the First Schedule could not be altered. With Haris stressing the importance of applying the current law in this case.

Meanwhile, Justice Mandokhail raised the issue of military trials for the culprits in terrorist attacks in which a significant number of young Pakistani soldiers get martyred. Would they also face military trials, he asked, adding that why cases involving martyrs are not tried in military courts.

At this, Haris clarified that this case was not concerned with who might be tried in the future.

Justice Mandokhail inquired about the extent to which civilians could be tried in military courts and which cases under Article 8, Section 3, would be eligible for trial in military courts.

Meanwhile, Justice Hilali emphasised that Pakistan’s constitution has not been suspended, and fundamental rights remain intact, as evidenced by judicial rulings.

Haris confirmed that there are legal precedents supporting this.

The top court, in its unanimous verdict by a five-member bench, on October 23 last year declared civilians’ trials in military courts null and void after it admitted the petitions challenging the trial of civilians involved in the May 9 riots.

However, on December 13, 2023, a six-member bench of the apex court — with Justice Hilali differing with the majority — suspended its October 23 order on petitions challenging the earlier verdict.