ISLAMABAD:
The Supreme Court’s Constitutional Bench on Thursday questioned the criteria used to assign cases from the May 9, 2023, riots to either military courts or anti-terrorism courts (ATCs).
During the hearing of an intra-court appeal challenging the military trials of civilians, Defense Ministry lawyer Khawaja Haris argued that the Supreme Court’s earlier ruling implied even individuals like Indian spy Kulbhushan Jadhav could not be tried in military courts.
The seven-member bench, headed by Justice Aminuddin Khan, examined the appeal against the October 23, 2023, verdict, which nullified the military trials of civilians involved in the May 9 riots. The decision was based on petitions challenging such trials.
Justice Muhammad Ali Mazhar raised concerns about whether military courts could try spies like Kulbhushan Jadhav after the Supreme Court’s ruling, which had invalidated certain provisions of the Army Act. Khawaja Haris responded that the judgment effectively restricted military courts from trying even spies.
Justice Jamal Khan Mandokhail emphasized the need to strengthen the prosecution system and questioned why the ATCs had not been bolstered to handle such cases. He noted that courts base their decisions on available evidence, underscoring the importance of improving prosecution standards.
Other bench members, including Justices Naeem Akhtar Afghan and Musarrat Hilali, questioned the process of determining which cases were directed to military courts and which were handled by ATCs. Justice Afghan pointed out that 103 individuals implicated in May 9 cases were tried in military courts, while others faced ATCs.
Justice Hilali further inquired about whether ATCs had authorized the transfer of any accused to military custody and how distinctions were made between cases.
Khawaja Haris argued that the Supreme Court’s decision had effectively rendered Article 233—pertaining to the suspension of fundamental rights during emergencies—ineffective. He explained that Article 233 gives the president authority to suspend fundamental rights during emergencies, but the court’s rulings clarified that judicial oversight remains intact even in such situations.
Justice Aminuddin Khan noted that courts could still defend fundamental rights during emergencies, although their implementation might be temporarily halted. Justice Hilali pointed out that in the May 9 cases, fundamental rights had not been officially suspended when the accused were transferred to military custody.
Justice Mandokhail highlighted the importance of respecting all courts, including military courts, but insisted they must operate within constitutional boundaries.
Additionally, Punjab’s Additional Advocate General presented a report on the solitary confinement claims of May 9 convicts. Justice Aminuddin Khan stated that the court could not issue orders concerning the convicts at this stage.
The hearing was adjourned until Friday (today).
