SC questions distinction made in trial of May 9 accused

ISLAMABAD: The Supreme Court on Thursday questioned the justification of the trial of May 9 suspects in military courts and asked the federation counsel on what grounds cases of 103 accused were segregated from other accused being tried by the anti-terrorism courts (ATC).

A seven-member Constitutional Bench headed by Justice Amin-ud-Din Khan heard the intra-court appeals (ICAs) of the federal government against the apex court judgement declaring trial of civilians in military courts as unconstitutional. Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Khwaja Haris, counsel for the Ministry of Defence, continued his arguments.

During the hearing, judges put volley of questions to the counsel regarding the criteria of trying the civilians in military courts as well as its jurisdiction.

Justice Musarat Hilali observed that this is not a case of the existence of military courts, but of jurisdiction and questioned as to which case will be tried in military courts, which one won’t, and how is this distinction made?

Similarly, Justice Naeem Akhtar Afghan asked the counsel to take his question in the basket as he is going with a basket full of other questions.

Justice Afghan observed that the case against 103 accused in the May 9 incidents has been tried in the military courts while the rest of cases are going on in the ATCs.

“How is the distinction made as to which case will go to military courts and which will go to the ATC, and where is the detailed decision of the anti-terrorism courts to hand over the suspects into army custody,” Justice Afghan asked the counsel.

Justice Mandokhail questioned as to who and how one decides on a crime where the case will go.

Khawaja Haris, while advancing his arguments, submitted that the Supreme Court in its decision has violated the Constitution regarding the imposition of emergency, and has rendered Article 233 ineffective but Article 233 has nothing to do with the case of military courts, He submitted that Article 233 has been manipulated to justify the interpretation of Article 8(5), adding that under Article 233, the president can impose emergency and suspend fundamental rights.

Justice Mazhar said that emergency was also imposed during Pervez Musharraf’s era. Fundamental rights cannot be implemented by courts during emergency, he added, remarking that on this point the Supreme Court’s judgements are in the field holding that the court can use its authority.

Justice Amin-ud-Din observed that the fundamental rights can be defended in the courts, only enforcement is suspended.

Justice Musarat Hilali said that in the present case when the accused were taken into military custody, the country’s fundamental rights were not suspended, adding that when the accused were taken into military custody, the state of emergency was not enforced as well.

Khwaja Haris, however, submitted that the Supreme Court has held that preventing the implementation is equivalent to suspending fundamental rights.

Justice Mazhar observed that the apex court in its main judgement has declared clause 2(d) of the Army Act as null and void and asked the counsel as to what the overall effect of declaring this clause of the Army Act null and void would be.

“Can the case of an anti-national spy like Kulbhushan Jadhav be tried in military courts,” Justice Mazhar asked the Defence Ministry’s counsel.

Khwaja Haris, however, told the court that by the decision of the Supreme Court, even the anti-national spies cannot be tried in military courts.

Justice Mandokhail questioned as to why we are not strengthening our prosecution system.

Justice Rizvi observed that there was an attack on the GHQ before, in which there were martyrdoms while a Korean plane was destroyed in a terrorist act in Karachi and there were martyrdoms. “Similarly, in a plane hijacking case, an attempt was made to hijack the plane of army chief who was on a foreign visit,” Justice Rizvi continued.

Justice Mandokhail, however, observed that it was merely an allegation.

Justice Rizvi asked as to where all these cases were conducted and the court should be at least provided data of those incidents.

Khwaja Haris said that Article 233 of the Constitution does not mention the suspension of fundamental rights. But Justice Mandokhail said that the president has the authority to suspend fundamental rights, and the administration executes the order of the president.

“When all these powers belong to the Executive, so how can anyone else do so,” Justice Mandokhail asked the counsel

Addressing Khwaja Haris, Justice Mandokhail recalled that former chief justice Ghulam Muhammad Mirza had once told the lawyer that the arguments were good but he was not impressed. “In this matter, I am also not impressed by your arguments,” he told the counsel.

Justice Mandokhail observed that the accused is being acquitted by the anti-terrorism court, but he is being punished by the military court.

“Is there any special evidence provided in the military courts and why are the anti-terrorist courts not being strengthened,” he questioned, adding that after all, the courts have to decide after examining evidence.

Similarly, Justice Rizvi questioned as to whether the May 9 incident was more serious than terrorism, as the accused are being tried in the military court. “If there are good investigating officers and prosecutors, then the courts can award punishments,” the judge remarked.

Justice Musarat Hilali inquired that where the Constitution is not suspended, can there be trials of civilians in military courts?

Khwaja Haris replied that the commanding officer is mentioned under section 94, adding that he will give arguments on it in detail.

Meanwhile, the Punjab additional advocate general, while presenting the report on keeping the May 9 convicts in solitary confinement, submitted that after breakfast, the convicts are released at 7:30 in the morning and they stay in the lawn till 5 pm.

Justice Mandokhail asked him as to whether the lawn is of death cell. The law officer replied in negative, adding that this is not the lawn that the judge has seen.

He further informed the court that there is a tuck shop in the prison, where prisoners can get coffee, etc, adding that mattresses are also given to the convicts from home.

Justice Musarat Hilali, while addressing the Punjab AAG, asked that if he has given any wrong statement then the bench will also ask for a report from the Jail Reforms Committee. He replied that he has been practicing for 30 years, so why he would tell a lie.

During the hearing, Hafizullah Niazi, father of a May 9 convict Hasan Niazi, told the bench that all the convicts have been kept in the high security zone to which the AAG said if he has any complaint, he should inform the jail superintendent.

Hafizullah Niazi said that they were denied the permission to sign the power of attorney. Justice Mazhar said that Salman Akram Raja appears before the court on video link, adding that usually nobody is denied to sign the power of attorney.

Justice Mandokhail said that according to the prison manual, the superintendent is bound to provide facilities, adding that military courts must be established, and that every court, including military courts, is respected. “But create military courts in accordance with the Constitution,” he remarked.

Justice Amin-ud-Din said that the Constitutional Bench cannot give any order related to convicted persons. “We care about everyone’s security.”

Justice Mazhar observed that if there is any complaint regarding signing of power of attorney, the district and sessions judge concerned should be approached, adding that under the jail manual, everyone has the right to sign the power of attorney.

Meanwhile, advocate Faisal Siddiqui, counsel for one accused, proposed that a report in this regard should be called from the district and sessions judge.

Justice Amin-ud-Din, however, observed that they we will not go out of their scope.

Faisal Siddiqui said that Khwaja Haris had given arguments for six months in the NAB amendments case, playing long Test match.

At this, Justice Mandokhail in a lighter tone asked the counsel if he wants to play like T20, adding that let Khwaja Haris give his arguments.

Later, the court adjourned further hearing until today (Friday).