The Supreme Court continued hearing intra-court appeals against the decision to nullify the trial of civilians in military courts, with a seven-member constitutional bench, headed by Justice Aminuddin Khan, overseeing the proceedings.
During Thursday’s hearing, Defence Ministry lawyer Khawaja Haris completed his arguments, stating that there was no need for a constitutional amendment for trying civilians in military courts. He argued that the Army Act was expanded through amendments to include additional crimes.
The Punjab and Balochistan governments, along with the Interior Ministry, Law Ministry, and Martyrs Foundation, endorsed Khawaja Haris’ arguments. However, when a private lawyer represented the Balochistan government, the bench raised concerns about the province’s role in the case. Justice Jamal Mandokhel questioned how a provincial government could be an affected party in the case.
Justice Mandokhel clarifies previous remarks
Justice Jamal Mandokhel also addressed a controversy surrounding his previous day's observations, stating that his remarks were misinterpreted.
"I said in a general sense that two individuals can disagree with the decision of eight judges. I did not mean two judges," he explained. "My words created confusion, and many retired judges contacted me about it," he added, clarifying that his comments were not directed at judges but at individuals in general, as opposed to what the media reported.
Justice Mandokhel referenced the 21st Amendment verdict, under which he said military courts were established during a war-like situation. He added that the Constitution had to be amended for the trial of civilians.
Justice Hasan Azhar Rizvi referenced the 21st Amendment that he said cited attacks on Mehran and Kamra bases where two Orion aircraft worth billions were destroyed. He questioned whether the May 9 incidents were more severe than these terrorist attacks.
Arguments on civilian rights
After Khawaja Haris concluded his arguments, former chief justice Jawad S. Khawaja’s lawyer, Khawaja Ahmed Hussain, began his arguments, emphasizing that civilians should not be tried in military courts.
Justice Musarrat Hilali questioned whether a civilian and a military personnel accused of a crime should be treated the same way. She stressed that the Constitution protects the fundamental rights of civilians. Hussain agreed there should be a clear distinction between the two.
He added that a person who joins the armed forces consents to be subject to the Army Act, arguing that the Army Act does not apply to common citizens, as Article 8(3) of the Constitution specifically mentions "members" of the armed forces. If the law was meant to apply to civilians, the wording would have been different, he explained.
"It is clear that this law does not apply to ordinary citizens," Hussain stated, adding the Army Act is exempted from fundamental rights in Article 8.
Justice Hilali also pointed out that even Kulbhushan Jadhav, an Indian spy tried in a military court, was granted the right to appeal in the high court, whereas ordinary Pakistani citizens are not given the same legal recourse.
The counsel further argued that the issue was not about releasing accused individuals but ensuring that civilians are not subjected to military court trials. He highlighted that court-martial of civilians has been ongoing for 54 years and should now come to an end.
The hearing was adjourned until tomorrow.
