SC seeks clarity over legality of May 09 civilian trial in military courts

ISLAMABAD
A seven-member constitutional bench of the top court Thursday raised critical questions about the trial of civilians involved in the May 9 events, specifically the basis for sending certain suspects to military courts while others being tried in Anti-Terrorism Courts (ATCs).
The seven-member constitutional bench, headed by Justice Aminuddin Khan and also including Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan, resumed the hearing of the case regarding the trial of civilians in military courts.
Resuming arguments on behalf of the Ministry of Defence, senior advocate Supreme Court Khawaja Haris contended that interpretation of Article 233 of the Constitution of Pakistan pertained to the suspension of fundamental rights during an emergency, was incorrect when the decision to conduct military trials for civilians was made. He emphasised that fundamental rights could only be suspended under an emergency, as was the case during the tenure of Gen Pervez Musharraf.
Justice Muhammad Ali Mazhar observed this case does not involve the suspension of fundamental rights. He pointed out that during Musharraf’s regime rights were suspended due to a lack of the right to appeal.
Justice Aminuddin Khan raised the issue of whether an emergency had been declared in this case, prompting Justice Mazhar to clarify that the suspension of fundamental rights required an emergency to be in place.
Justice Musarrat Hilali also pointed out that, in the present case, the fundamental rights of the accused were not suspended, nor was an emergency declared when the individuals were taken into military custody. She raised a question saying who determined the jurisdiction for trials in military courts and how the differentiation was made between cases that proceed in ATCs and those sent to military courts. Justice Muhammad Ali Mazhar noted that all suspects from the May 9 incidents were booked under similar FIRs and questioned why some were subjected to military trials while others faced ATCs. Justice Naeem Akhtar Afghan asked whether there was any ATC order transferring suspects to military courts and demanded clarity on the process for taking suspects into military custody.
Justice Jamal Mandokhail sought an explanation of the principles and procedures followed to determine the jurisdiction of cases. He also remarked, “An accused is acquitted in an ATC, but then sentenced by a military court. Is there any special evidence presented in military courts that isn’t considered in civilian courts?”
The bench further raised concerns about a lack of legal precedent for trying civilians in military courts without constitutional provisions like the suspension of rights. Justice Hilali questioned whether any examples existed where civilians were tried in military courts without an emergency being declared. Justice Hasan Azhar Rizvi pointed out that previous terrorist attacks on military installations, including the hijacking plot against an army chief’s plane, were tried in civilian courts. He asked what distinguished the May 9 incidents to justify military court trials.
Justice Mandokhail suggested that instead of diverting cases to military courts, ATCs should be strengthened to handle such matters. He highlighted that ATCs operate based on evidence and expressed concerns about the process and transparency of military trials. The court requested FIRs for all cases related to the May 9 incidents and detailed decisions by ATCs transferring suspects to military courts.
Justice Afghan revealed that as many as 103 suspects from the May 9 cases were tried in military courts, while others remained in the ATC courts. He asked how such distinctions were made and emphasised the need for clarity on the criteria used for allocating cases.
The bench observed that decisions regarding trials must be evidence-based and legally sound. It stressed the importance of a clear legal framework to ensure transparency and fairness in the judicial process. Later the bench adjourned hearing of the intra-court appeal against military court trials of civilians until today (Friday) where Khawaja Haris may resume arguments.