• Civil society lawyer in appeals against military trials case suggests ‘a way out’
• Of 105 convicted for May 9 violence, only 66 are in jail, says law officer
• Ex-SCBA president to commence his arguments today

ISLAMABAD: Justice Jamal Khan Mandokhail, a member of the Supreme Court’s constitutional bench hearing civilians’ military trials, has emphasised that whosoever commits a crime must be punished irrespective of court in which they are to be tried.

His observation came during the hearing of intra-court appeals (ICAs) on Tuesday against the October 2023 court order that nullified the military trials of those involved in May 9 violence.

The seven-judge constitutional bench, headed by Justice Aminuddin Khan, had taken up a set of 38 ICAs, moved by the federal government, provincial governments as well as Shuhada Forum Balochistan etc, against the landmark verdict by a five-member bench.

While closing his arguments, senior counsel representing the civil society Faisal Siddiqi suggested that even if authorities insisted on the court martial of those civilians, there were alternative ways for that.

At this, Justice Mandokhail observed that regardless of whosoever committed the crime, the punishment should be meted out. “What difference does it make whether the trial is held here or there,” he said.

Contesting the remarks, the counsel argued that there was a world of difference in trials held by an independent court and by a military court.

Justice Mandokhail, however, noted that all forums were available and equally respectable.

While referring to the customary practice in the US that at the end of arguments court provides both parties an opportunity to propose a judgement, Faisal Siddiqi said a possible way out was that the court declare the military trials of the May 9 accused illegal on the grounds that their custody was transferred from anti-terrorism courts to the military courts even before a civil court could determine whether their offence attracted the Official Secrets Act (OSA) or not.

The counsel argued that the commanding officer had “discretion to choose” 105 of a total of 5,000 suspects arrested for their involvement in the May 9 incident, which was “arbitrary”.

He said that if the cases were transferred back to ATCs, it would help safeguard the interest of the executive and civilians. In case, ATCs decided in favour of the civilians, the executive could file an appeal before the high court, he said. If ATCs approved handing over their custody to the military courts, the civilians would also be able to challenge the decision, he added.

“If the executive still does not approve these suggestions, then it is not an issue of a trial but egos,” the counsel believed.

Justice Muham­mad Ali Mazhar inquired about the convicts who had been released by the military courts. At this, senior counsel Faisal Siddiqi told the court that out of 105 individuals who were tried by the military courts, 20 were released by April 2024.

The federal government had apprised the Supreme Court in April that 20 of those jailed for their involvement in the May 9 violence had been released to allow them to celebrate Eidul Fitr with their families, after they served major part of their sentences while the remaining period of their punishment was remitted by the Chief of Army Staff (COAS).

Additional Attorney General Chaudhry Aamir Rehman explained that the mercy petitions of 19 more convicts were also accepted in January 2025. Currently, he added, the remaining 66 convicts were serving their jail terms for their involvement in the May 9 violence.

The counsel emphasised that civilians could be tried in the military courts when there were threats to the country’s defence, but the cases involving attacks on the military installations on May 9 were the kind of violence that fell within the ambit of “vandalism”.

He contended that it was the tradition of the superior courts throughout the judicial history to resist civilians’ trial by military courts, martial law courts or under conditions of militarisation and denial of fundamental rights.

Former Supreme Court Bar Association president Abid Shahid Zuberi will commence his arguments on Wednesday.

Published in Dawn, March 5th, 2025