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Pakistan's top court questions jurisdiction of military courts in May 9 cases

Supreme Court's final decision could significantly impact the future of military court trials in Pakistan

Pakistan's top court questions jurisdiction of military courts in May 9 cases
A file photo of the Supreme court of Pakistan.
AFP

The Supreme Court resumed hearings on Thursday regarding the legality of trying civilians in military courts.

A seven-member constitutional bench, headed by Justice Aminuddin Khan, is examining the contentious issue.

The case stems from the riots of May 9, 2023, when supporters of Pakistan Tehreek-e-Insaf (PTI) stormed military installations following the arrest of their leader, former Prime Minister Imran Khan.

The violence, which included the desecration of the Lahore Corps Commander’s residence and attacks on army facilities, led to the detention of hundreds of civilians.

The government opted to try 102 suspects in military courts under the Army Act and the Official Secrets Act, sparking criticism from human rights groups and opposition parties.

Khan, ousted through a no-confidence motion in 2022, has claimed the cases are politically motivated. He has faced several legal challenges, including corruption charges, which he alleges are part of a crackdown on his party.

Legal debates over rights

Justice Musarrat Hilali noted during the hearing that fundamental rights were not officially suspended when suspects were taken into military custody following the riots.

Khawaja Haris, counsel for the Defense Ministry, argued that Article 233 of the Constitution—allowing the suspension of fundamental rights during emergency rule—was rendered ineffective by a Supreme Court ruling and is irrelevant to the current case.

Justice Muhammad Ali Mazhar referenced precedents from military ruler General Pervez Musharraf's era, stating that courts retain jurisdiction even during emergencies.

Justice Aminuddin Khan clarified that while enforcement of rights may be suspended during emergencies, their defense in courts remains intact.

Haris countered that suspending the enforcement of rights effectively equates to suspending fundamental rights entirely.

Trial jurisdiction and case differentiation

Discussions also extended to the case of Indian spy Kulbhushan Jadhav, who was tried in a civilian court after a Supreme Court ruling struck down a section of the Army Act allowing certain military trials. Haris argued that the decision impacts cases of enemy spies by barring military courts from trying them.

Justice Jamal Khan Mandokhail questioned why Pakistan is not strengthening its civilian prosecution system to handle cases involving national security. Justice Musarrat Hilali emphasized that the issue is not the existence of military courts but defining their jurisdiction. Justice Naeem Akhtar Afghan asked about criteria distinguishing cases for military courts versus anti-terrorism courts.

Prisoner conditions

Punjab’s Additional Advocate General Sanaullah Zahid presented a report on the conditions of convicts held in solitary confinement. According to the report, prisoners are allowed outside from 7:30 a.m. after breakfast until 5 p.m. The prison has a café where inmates can purchase tea and coffee. Additionally, convicts are permitted to receive mattresses and blankets from their homes.

Advocate Faisal Siddiqui sarcastically commented on the seemingly lenient conditions, calling them “a homely environment”.

Justice Musarrat Hilali warned against misrepresentation, stating, “If you are found misleading, we will seek a report from the Jail Reforms Committee.” Zahid defended his report, asserting, “I have been practicing for 30 years; why would I lie?”

The Supreme Court’s final decision could significantly impact the future of military court trials in Pakistan.

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