ISLAMABAD:
The Constitutional Chamber of the Supreme Court on Thursday raised questions about the decision of the competent authorities to divide the cases relating to the riots of May 9, 2023 between the military courts and the anti-terrorism courts (ATC).
While hearing the intra-judicial appeal regarding the military trial of civilians, defense ministry lawyer Khawaja Haris argued that the apex court’s decision implied that even enemies like the Indian spy Kulbhushan Jadhav could not be tried in military courts.
The seven-member Constitutional Bench, headed by Justice Aminuddin Khan, continued to hear the appeal. During the proceedings, Khawaja Haris presented his arguments, while the judges raised several issues, including a reference to Indian spy Kulbhushan Jadhav.
The appeal to the bench arises from the verdict delivered on October 23, 2023 by a five-member panel of the highest court which granted the motions against the trial of civilians involved in the May 9, 2023 riots and declared their military trial null and void. not happened. .
During the proceedings of Khawaja Haris, Justice Muhammad Ali Mazhar asked the lawyer that since the Supreme Court had declared cause (d) of paragraph (1) of section (2) of the Army Act as null and void, then he could spy like Kulbhushan Jadhav. be tried by military courts.
Expanding on the overall impact of the Supreme Court’s decision, Khawaja Haris responded that after the judgment, even the spy could not be tried in military courts. In this regard, Justice Jamal Khan Mandokhail stressed the need to strengthen prosecutions.
“Why are we not strengthening our prosecution system? Why are the anti-terrorism courts not being strengthened,” Justice Mandokhail asked. He added that the courts only made their decisions after reviewing the evidence; prosecutions therefore had to be strengthened.
Justice Mandokhail and other members of the judiciary, including Justice Naeem Akhtar Afghan and Justice
Musarrat Hilali questioned the lawyer about the criterion and authority to decide which case would be brought before which court.
Judge Afghan said 103 defendants in the May 9 cases were tried by military courts, while the remaining cases were tried by the ATCs. He asks how this distinction is made.
Judge Afghan also questioned Khawaja Haris on any decision by the ATC regarding the handover of the accused to military custody. “Which cases will be brought before military courts and which will not, how is this distinction made,” Justice Hilali asked.
Haris argued that the Supreme Court, in its ruling, had rendered Article 233 – relating to the state of emergency – ineffective. He said that although Article 233 had no relevance to the military tribunals case, it was invoked to demonstrate the correct interpretation of Article 8(5).
Explaining Article 233, Haris noted that it grants the president the power to suspend fundamental rights during a state of emergency. In response, Justice Mazhar observed that the Supreme Court’s judgments on fundamental rights issues make it clear that courts can exercise their authority even in times of emergency.
Justice Aminuddin Khan said that during the Emergency, fundamental rights could be upheld in courts but their implementation was suspended. Judge Hilali emphasized that in the present case, fundamental rights were not suspended when the accused were placed in military detention.
Haris said the Supreme Court’s ruling had said that stopping the execution amounted to suspension of fundamental rights. Judge Hassan Azhar Rizvi said there had been attacks on military installations in the past. He asks where all these cases are judged.
Justice Mandokhail remarked that every court, including the military court, must be respected, but military courts should be established within the framework of the Constitution, adding that the Supreme Court had determined that no court could be established in contradiction with the Constitution.
During the hearing, the Additional Advocate General Punjab submitted a report regarding the allegations of solitary confinement of the May 9 convicts. Justice Aminuddin Khan said the court could not pass any order regarding the convicts. The hearing of the case was adjourned to Friday (today).