The Case Overview
In a case addressing the legality of civilians’ trials in military courts, a seven-member constitutional bench, headed by Justice Aminuddin, continues to deliberate on an intra-court appeal. The appeal challenges the appropriateness of military courts for trying civilians, with critical questions raised about the procedures and justice delivered under such trials. Defense Ministry lawyer Khawaja Haris presented arguments to address these concerns.
Questions Raised by Justice Musarrat Hilali
During the hearing, Justice Musarrat Hilali questioned the procedure followed in military courts, specifically asking, “Who writes the verdict in a military court?” She noted that, in her understanding, the case is heard by one individual, while the commanding officer decides the punishment. This discrepancy raises concerns about how someone uninvolved in the hearing process can determine a sentence.
Khawaja Haris clarified that a Jack Branch assists in writing the verdict, but the explanation left room for further debate. Justice Hilali emphasized the need for transparency, highlighting potential flaws in a system where decisions are made by individuals not directly involved in hearing the evidence.
Applicability of the Army Act
Justice Jamal Mandokhel raised a fundamental point: “The Army Act applies only to the military.” He emphasized that the court must ensure whether the accused—military officers or civilians—receive their fundamental rights and a fair trial.
Justice Muhammad Ali Mazhar added context, explaining that courts-martial worldwide consist of officers experienced in handling trials. However, Justice Hilali expressed concerns about whether these officers have the requisite experience to deliver sentences, especially those as severe as the death penalty.
Notable Comparisons and Precedents
Justice Hilali brought up a historical example where an army chief’s plane was ordered to leave the country with airport lights turned off. She pointed out that this act endangered passengers, led to martial law, yet was not tried in a military court. In response, Khawaja Haris stated that hijacking is not categorized as a crime under the Army Act, which explains why the trial was not held in a military court.
Concerns Over Judicial Expertise
Justice Mandokhel questioned the competency of military officers to oversee trials involving civilians. He remarked, I have been in this field for 34 years, yet I still do not consider myself complete. Does this army officer have enough experience to sentence someone to death?
Khawaja Haris assured the court that the procedure of military trials would be explained in greater detail in the next phase of his arguments, indicating that this remains a contentious issue requiring further clarification.
Statistics on May 9 Incidents
Additional Attorney General Amir Rehman provided statistics on the accused involved in the May 9 incidents, which form the basis of many trials. He revealed that around 5,000 individuals were implicated, with evidence pointing to the direct involvement of 105 individuals. These accused were sent to military courts for trial based on their presence at the scene.
Broader Implications
The case has significant implications for the legal system in Pakistan, especially regarding the balance between civilian and military jurisdictions. Critics argue that trying civilians in military courts undermines the principles of transparency and fundamental rights. Proponents contend that military courts are essential for handling cases involving national security and discipline.
Awaited Verdict
The constitutional bench adjourned the hearing until Monday, leaving critical questions unanswered. As the debate unfolds, the focus remains on ensuring that justice is not only served but also perceived as fair and unbiased.
