ISLAMABAD: Justice Musarrat Hilali, a member of the Supreme Court’s constitutional bench, expressed doubts on Wednesday regarding the validity of military trials for civilians under the Pakistan Army Act (PAA). He pointed out that the trials were initially designed for those responsible for heinous crimes like the 2014 Army Public School (APS) massacre and questioned whether the same could be true for civilians charged in the violent protests on May 9.
Justice Hilali noted that the Constitution’s guarantee of fundamental rights could not be suspended, even while the rights of those accused who are subject to military courts might be limited. She also questioned if the accused were completely aware of the seriousness of their actions or the possible consequences.
The Ministry of Defense’s senior attorney, Khawaja Haris Ahmed, responded that even under these situations, fundamental rights are upheld and cited court rulings to support his position.
The seven-judge panel was considering appeals against a five-judge panel’s ruling from October 23, 2023, that declared civilian trials in military courts invalid.
While Justice Jamal Khan Mandokhail emphasized that the accused in the May 9 incidents were not former service members nor members of the armed forces, Justice Muhammad Ali Mazhar pointed out that the applicable statutes already classify offenses.
“We realized that many military personnel were being martyred every day, but the real issue that needed to be addressed was that the military courts were not the only ones trying the cases of those accused of such crimes,” Justice Mandokhail noted.
“How far can a civilian be tried in military courts? That is still the real question.” Justice Mandokhail inquired as to whether a civilian may be convicted in military courts for just harboring anti-military sentiments or ideas.
Justice Naeem Akhtar Afghan noted that no civilians may be convicted by military courts if the court upheld the ruling from October 23. The court would have to specify who people could be subject to such proceedings, though, if it made a different decision.
According to Justice Mandokhail, parliament has the power to enact laws that define what behaviors are considered crimes. “Parliament can even enact legislation that would make it illegal to even look with a slanted eye,” he stated.
Asserting that the Constitution, not parliament, is supreme, he also emphasized the constitutional duty of parliament to provide legal channels for certain crimes.
The defense attorney maintained that Clauses 3 and 5 of Article 8 of the Constitution were separate and could not be combined, arguing that the Oct. 23 ruling misread these clauses. He brought up the instance of Brig. F.B. Ali, where a retired military commander was tried as a civilian in a military court.
The Punjab government guarantees adherence.
The Punjab government, acting on Tuesday’s directive, assured the Supreme Court through Additional Advocate General (AAG) Waseem Mumtaz that inmates convicted of participating in the May 9 violence were receiving treatment in compliance with the Pakistan Prison Rules of 1978 and that all essential amenities specified in these regulations were being supplied.
According to a government report, 28 prisoners were sent to Kot Lakhpat Jail in Lahore in December 2024 after being found guilty by the military court presided over by Lt Col Sheikh Muhammad Asad Javaid, the 54th Electrical and Mechanical Engineers Battalion’s commanding officer.
Later, on January 2, 2025, two inmates were released after the Chief of Army Staff remitted their sentences.
Justice Mazhar pointed to television commentator Hafeezullah Niazi during the hearing and stated that Niazi had claimed that the accused were being held in the worst possible circumstances in the jail.
Mr. Niazi said that although the convicts were being given more facilities and family gatherings were being planned, they were still being held in solitary confinement and were not permitted to leave their cells.
Justice Mazhar questioned if each prisoner needed a separate cell. Inmates were permitted to move freely, wander around, or sunbathe after sunrise, according to Justice Mandokhail, who recalled his 14 days in jail while practicing law at the time of the lawyers’ movement.
Justice Hassan Azhar Rizvi, however, noted that Justice Mandokhail must be receiving special treatment because he is a lawyer.
However, Justice Mazhar joked, “Don’t reveal old secrets here now,” in response to the Punjab AAG recalling how he and Justice Shahid Bilal Hassan, another member of the bench, spent time together in Bahawalpur Jail.
The head of the constitutional bench, Justice Aminud Din Khan, noted that the court will be investigating this issue every day and would even direct the dispatch of a person to visit the jail’s grounds if necessary.
However, Mr. Niazi stated that while prisoners were permitted to see their relatives, they were not permitted to see their attorneys.
Justice Hilali said that she used to frequently visit prisons while serving as Chief Justice of the Peshawar High Court. She also mentioned that, in general, she was not permitted to approach those convicted by military courts, who were housed in high-security enclosures.
Even terrorists and murder suspects are free to roam prisons, according to Justice Mandokhail, who also questioned what crime these suspects had committed.
Regarding the accused’s solitary confinement and refusal to allow them to see their attorneys, the court requested a new report from the Punjab government.
According to the current report from the provincial government, inmates were given sanitary meals, blankets, and hygiene kits, among other necessities. Inmates were permitted to buy products at their own expense from a Utility Stores Corporation location, and family interviews were conducted on Fridays.
In addition, family members were authorized to bring fruits, home-cooked meals, and other approved food items. According to the report, the medical team is also on call 24/7 to handle any inmate’s medical needs.
