• Asks CB to propose new conditions for judicial review
• What is harm in giving right of appeal to convicts, wonders Justice Mandokhail; Justice Hilali observes military courts decide cases on ‘gun point’
• AGP claims placing accused before ordinary courts will endanger judges’ lives

ISLAMABAD: Attorney General for Pakistan (AGP) Mansoor Usman Awan on Wednesday requested the Supreme Court’s constitutional bench — hearing cases related to the military trial of civilians — to propose any additional conditions for judicial review under the Pakistan Army Act, 1952, beyond those established in the 2015 Rawalpindi District Bar Association case.

Though the AGP sought time to consult the government on a key question raised by the seven-judge bench — whether convicts in the May 9 attacks should have the right to appeal before an independent court — he affirmed that the bench could suggest further conditions for judicial oversight.

Headed by Justice Aminuddin Khan, the CB had taken up 38 intra-court appeals moved by the governments as well as the Shuhada Forum Balochistan against the Oct 23, 2023 judgement.

While deciding challenges to the 21st Amendment under which nine special courts manned by military officers were set up, the SC in 2015 held that any sentence awarded in such trials will subject to judicial review on the grounds of coram non judice, being without jurisdiction or suffering from mala fide.

On Wednesday, the AGP told the CB that even if the court martial awards death sentence, it is not executed until it’s confirmed by the court of appeal.

He said the point raised by the constitutional bench regarding right to appeal requires brain storming for which he needed a day or more to respond.

What is harm in providing right of appeal to the convicts of May 9 attacks, Justice Jamal Khan Mandokhail wondered whereas Justice Musarrat Hilali regretted that in civilian courts, the accused raised hue and cry if a judge went on a leave on a hearing date but military courts decide cases on gun point.

Justice Mandokhail pointed out that parliament had stated that appeal was one of the fundamental rights.

“We don’t distrust any institution but suspicion emerges when a complainant institution itself initiates the trial of the accused,” he observed, adding that institutions should not be destroyed like this otherwise nothing will be left.

Justice Syed Hasan Azhar Rizivi wondered whether the officers who preside the court martial were experts, well conversant with the Evidence Law and know about the effects of the misreading or non-reading of evidence.

The AGP explained that offices who decide cases in military courts were well conversant with relevant rules. He said those apprehended were so dangerous that placing them before ordinary courts will endanger the lives of the judges and their families.

Later, senior counsel Khawaja Haris Ahmed on behalf of the Defence Ministry argued that military courts were legitimately constituted courts.

He said military courts were not subordinate to the high court in terms of Articles 202 and 203, adding that these courts do not fall within the framework of Article 175. In other words, he argued, military courts were not part of the judicature and they were also not courts with respect to which any writ could be issued under Article 199, including the writ for enforcement of fundamental rights other than in cases where the acts impugned are coram non judice, without jurisdiction or mala fide.

Published in Dawn, April 10th, 2025