Islamabad: Supreme Court Justice Hasan Azhar Rizvi questioned whether the offences of May 9, 2023, were more severe than acts of terrorism. His remarks were made during a hearing on the intra-court appeal against the trial of civilians in military courts by a seven-member constitutional bench led by Justice Amin-ud-Din Khan.
The Ministry of Defence’s counsel, Khawaja Haris, stated that military courts were not part of the judicial system under Article 175 of the Constitution but were instead established under a separate recognized law. In response, Justice Jamal Mandokhail remarked that courts established under Article 175 have broad jurisdiction, while those set up under specific laws have limited powers.
He further explained that the 21st Constitutional Amendment had established military courts for wartime situations, and a constitutional amendment was required for the trial of civilians. The defence ministry’s counsel responded by stating that no amendment was necessary for the trials, but rather the amendment expanded the Army Act to include additional offences.
Justice Rizvi observed that the 21st Amendment also mentioned the Mehran and Kamra airbase attacks, questioning where the trials of the attackers of General Headquarters (GHQ) and the Kamra airbase were held. “Two Orion aircraft worth billions of rupees were destroyed—was the May 9 incident more severe than these terrorist attacks?” he asked.
The defence lawyer stated that all the terrorists involved in the Mehran base attack were killed. Justice Rizvi responded, asking, “Was there no investigation after they were killed? Who were they? Where did they come from, and how did they enter? Was the file of the Mehran attack closed after the terrorists were killed?”
The GHQ attack case was tried in military courts, and the trial took place before the 21st Amendment, the counsel added. Justice Rizvi noted that the amendment was made based on all the attacks to avoid difficulties in trials.
Justice Musarrat Hilali emphasized that the Constitution is the supreme law and questioned the distinction between civilians and military personnel involved in cases.
Meanwhile, lawyer Khawaja Ahmed Hussain argued that when the Army Act is applied, fundamental rights are suspended. He pointed out that a law was enacted to grant Indian spy Kulbhushan Jadhav the right to appeal in the High Court, yet ordinary citizens are denied this right.
He also mentioned that the federal government had repeatedly claimed that military courts’ decisions would include reasoning, but it is now stated that no reasoning is provided.
Hussain further stated that Article 8(3) of the Constitution excludes the Army Act from fundamental rights provisions, making it clear that the law applies to members of the armed forces, not civilians.
Justice Mandokhail asked if the article should have referred only to “armed forces” instead of “members of the armed forces,” to which Hussain agreed, noting that the term “members” clarified that civilians cannot be tried under the same provisions.
After detailed arguments, the court adjourned the hearing until tomorrow (Friday).
