pakistan
Supreme Court questions ‘selective military trials’ of May 9 suspects
The Supreme Court’s constitutional bench 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.
During the proceedings, Ministry of Defence counsel Khawaja Haris argued that the interpretation of Article 233, which 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 countered, stating that this case does not involve the suspension of fundamental rights. He pointed out that during Musharraf’s era, 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.
Justice Musarrat Hilali asked 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 Anti-Terrorism Court (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 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.
The Supreme Court adjourned the hearing of the intra-court appeal against military court trials of civilians until tomorrow (Friday).
The bench is expected to hear further arguments from Khawaja Haris as the case continues.
Federal Interior Minister Mohsin Naqvi has expressed optimism that Pak-US relations will enter a new phase under President Donald Trump’s leadership.
In separate meetings with U.S. Congressmen Joe Wilson and Rob Bresnahan, Minister Naqvi discussed mutual interests, enhancing bilateral ties, and cooperation in various fields.
The discussions also addressed resolving issues faced by overseas Pakistanis and achieving sustainable peace in the region, particularly concerning the situation in Afghanistan.
Both sides emphasised the need for increased exchanges of trade and cultural delegations.
Minister Naqvi assured full cooperation at all levels to strengthen Pak-US relations and extended an invitation to the Congressmen to visit Pakistan.
The Interior Minister highlighted that the U.S. remained a critical strategic partner for Pakistan, with relations spanning several decades. He praised President Trump’s commitment to global peace and conflict resolution, describing his leadership as a beacon of hope for the world.
Pakistan’s Ambassador to the U.S., Rizwan Saeed Sheikh, was also present during the meetings
In response to the contempt of court notice regarding the rescheduling of the case related to powers of bench, Supreme Court Additional Registrar Nazar Abbas submitted his reply to the show-cause notice.
In his response, Additional Registrar Nazar Abbas requested the withdrawal of the show-cause notice, asserting that he did not defy any judicial orders. He stated that he had submitted a note regarding the matter of forming a bench based on the judicial order to the Practice and Procedure Committee.
A two-member bench of the Supreme Court, consisting of Justice Mansoor Ali Shah and Justice Aqeel Abbasi, is hearing the contempt of court show-cause notice case.
Judicial assistant Hamid Khan began his arguments.
Justice Mansoor Ali Shah, engaging in a dialogue with lawyer Hamid Khan, inquired whether a judicial order could be changed administratively.
Advocate Hamid Khan replied that an administrative order could not alter a judicial order. He explained that the Supreme Court’s formation is under Article 175, and judicial power is vested in the entire Supreme Court. The definition of the Supreme Court is clear; all judges are included, and it cannot be stated that only a specific judge can exercise the Supreme Court’s power.
Justice Mansoor Ali Shah remarked that this is a separate issue, and if the case were about interpreting Article 191-A, this question could have arisen. However, the case at hand pertains to the return of the Judges Committee, and the Chief Justice of Pakistan and Justice Amin-ud-Din Khan are part of that committee.
On the surface, it appears that the two-member judges committee ignored the judicial order. If the judges’ committee disregards a judicial order, the matter can be referred to the full court. The court sought assistance on this matter.
Justice Aqeel Abbasi remarked that there seems to be confusion regarding the issue. He asked Hamid Khan how he views Article 191-A.
Hamid Khan noted that in the past, the Supreme Court had the authority to make rules regarding the formation of benches, but now some of those powers had been reduced. The question of the 26th amendment might arise here.
Justice Mansoor Ali Shah further questioned whether in any country, the executive, rather than the judiciary, forms a bench. He asked Hamid Khan if he could provide an example.
Hamid Khan responded that there was no such example.
The court asked whether, under the rules of 1980, the full court would be constituted by Chief Justice of Pakistan or by a committee. Can the matter of forming the full court be sent to the Judges Committee through a judicial order?
Hamid Khan responded that the section 2-A of the Regular Judges Committee Act does not align with Article 191-A. He emphasised that Parliament can increase, but not reduce, the judiciary’s powers. He also wanted to give an example of Article 191-A.
Justice Mansoor Ali Shah remarked that this power is separate from the current case. These questions are related to the 26th constitutional amendment.
Hamid Khan continued that Article 191-A mentions constitutional benches, but there is no mention of a constitutional bench in the Supreme Court. At least a five-judge constitutional bench can be formed, and in this situation, three constitutional benches can be formed.
The senior-most judge will head the bench. He argued that since Article 191-A does not align with section 2-A of the Judges Committee Act, it is unconstitutional.
With Hamid Khan’s arguments concluded, the court adjourned the hearing for a brief period.
The Sargodha Anti-Terrorism Court (ATC) has issued arrest warrants for opposition leader in the National Assembly, Omar Ayub, for his failure to appear in the case related to the May 9 riots and vandalism.
The hearing was held in the Sargodha ATC, where tight security measure were at place. The case pertains to the unrest and property damage that took place in Mianwali on May 9 2023.
Several accused, including Punjab Assembly opposition leader Ahmed Khan Bhuchar, Sanam Javed, Aalia Hamza, MNA Bilal Ijaz, and dozens of other workers, appeared in court.
However, Omar Ayub failed to attend the hearing for the third consecutive time. His lawyers submitted a medical certificate on his behalf.
The court expressed anger over his continuous absence, remarking that Omar Ayub had missed three hearings in a row.
As a result of his non-appearance, the court was unable to frame charges against the other accused. The court has now issued arrest warrants for the senior PTI leader, Omar Ayub.
The court has adjourned the case until January 30th for further proceedings.
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