• 21st Amendment established military courts for wartime, says judge.
• Lawyers argue Army Act suspends fundamental rights for civilians.
• Army Act expanded to include additional offences, says counsel.

ISLAMABAD: Supreme Court’s Justice Hasan Azhar Rizvi has questioned whether the May 9, 2023, offences are more severe than acts of terrorism.

His remarks came as a seven-member constitutional bench of the Supreme Court, led by Justice Amin-ud-Din Khan, heard the intra-court appeal against the trial of civilians in military courts on Thursday.

During the proceedings, the Ministry of Defence’s counsel, Khawaja Haris, said that military courts were not mentioned within the judicial system under Article 175 of the Constitution and were instead established under a separate recognised law.

In response, Justice Jamal Mandokhail remarked that courts established under Article 175 have broad jurisdiction, whereas courts set up under specific laws have limited authority.

He further said that the 21st Constitutional Amendment stated that military courts were established in wartime situations, and a constitutional amendment was required for the trial of civilians.

In response, the defence ministry’s counsel said that no amendment was needed for trials; rather, the amendment expanded the Army Act to include additional offences.

Justice Rizvi observed that the 21st Constitutional Amendment also mentioned the Mehran and Kamra base attacks. He questioned where the trials of those who attacked the General Headquarters (GHQ) and the Kamra airbase were conducted.

“Two Orion aircraft worth billions of rupees were destroyed — was the 9 May offence more serious than these terrorist incidents?” he asked.

On Justice Hassan’s questions, the defence ministry’s lawyer said that all the terrorists of the Mehran base attack were killed.

“Was there no investigation after they were killed? Who were they? Where did they come from and how did they come?” Did the file of the Mehran base attack was closed after the terrorists were killed? questioned Justice Rizvi.

The GHQ attack case was tried in military courts and the trial took place before the 21st Constitutional Amendment, said the counsel.

At this, Justice Rizvi said that the constitutional amendment was made on the basis of all the attacks so that there would be no difficulties in the trial.

Justice Musarrat Hilali said that the Constitution is the supreme law and questioned the distinction between civilian and armed forces’ accused individuals.

Justice Mandokhail noted that the trials for civilians killed by Rangers in Karachi and Turbat were conducted in civil courts.

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 said that the federal government repeatedly claimed military courts’ decisions would include reasoning, but it is now being said that no reasoning is provided.

Hussain argued that Article 8(3) of the Constitution excludes the Army Act from fundamental rights provisions. He noted that Article 8(3) specifically mentions members of the armed forces, making it clear that the law is intended for them and not for civilians.

He contended that if civilians were to be included, different wording would have been used.

Justice Mandokhail then asked whether, in that case, the article should have referred only to the “armed forces” instead of “members of the armed forces”.

Hussain responded affirmatively, stating that the mention of “members” clarified that civilians could not be tried under the same provisions.

Following detailed arguments, the court adjourned the hearing till tomorrow (Friday).