ISLAMABAD: Justice Muhammad Ali Mazhar of the Supreme Court’s constitutional bench has acknowledged the difficulty the bench faced in identifying any violation of due process in the conviction of civilians by military courts for their involvement in the arson attacks and violence on May 9, 2023.

“Nothing is before the court to consider whether violation of due process of law as guaranteed under Article 10A of the Constitution or any malice in law or fact was committed during the military courts trials against May 9 accused,” Justice Mazhar noted on Tuesday.

He was part of the seven-judge constitutional bench hearing a set of 38 intra-court appeals moved by the federal government, provincial governments, Shuhada Forum Balochistan and others against the October 2023 judgement.

The judge recalled how the then SC in the F.B. Ali case had with them all the relevant records of the case in which the bench held that the matter could be considered on the touch stone of the fundamental rights since Brig F.B. Ali had retired then.

Justice Naeem Akhtar Afghan observed that the F.B. Ali case laid down a principle, but the decision revolved around the 1962 Constitution when the guarantees of fair trial provided under Article 10A were not part of the Constitution. He said the court then had dilated upon the availability of the fundamental rights available to him then though F.B. Ali did not get any relief.

On behalf of the defence ministry, senior counsel Khawaja Haris Ahmed emphasised that Article 6(3)A of the 1962 Constitution, now Article 8(3)A of the 1973 Constitution, was never taken as defence in the F.B. Ali case. Article 8(3)A says laws inconsistent with or in derogation of fundamental rights will be void but the provision will not apply to any law relating to the members of the armed forces etc.

Published in Dawn, April 16th, 2025