‘Prosecutor, judge & jury’: fairness of May 9 trials disputed in SC

• As affected party, army cannot conduct fair proceedings, argues ex-CJP’s lawyer
• Judge asks how troops will receive justice if PAA sections are deemed unconstitutional
• Acquitting 100 offenders preferable to sentencing one innocent, Justice Mandokhail observes

ISLAMABAD: The counsel for the complainant opposed the military trials of the individuals involved in the May 9 riots on Friday, saying that in a court-martial, the army acts as prosecutor, judge and jury.

But in the instant case, the army was also the affected party, which rendered such proceedings “unfair and unconstitutional”.

Khwaja Ahmad Hosain made these remarks as the seven-judge Constitutional Bench took up a set of intra-court appeals (ICAs) against the Oct 23, 2023 five-judge order nullifying the military trials of civilians involved in the May 9 violence.

During the hearing, Mr Hosain representing former CJP Jawwad S. Khawaja, submitted that Article 10-A of the Constitution contained an absolute and undiluted fundamental right to due process and a fair trial. This right is not qualified with reference to any reasonable restrictions as is the case with other rights. Therefore, the court martial of civilians violates this right and is unconstitutional, he added.

Justice Syed Hasan Azhar Rizvi, meanwhile, questioned how military personnel, who sacrifice their lives daily at the hands of civilian terrorists, would receive justice if the contested Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act (PAA) 1952 were deemed unconstitutional.

“Recently, five army personnel lost their lives, while another 13 embraced martyrdom in a different terrorist attack involving civilians,” Justice Rizvi remarked and then went on to question how terrorism cases could be effectively prosecuted in Anti-Terr­orism Courts (ATCs), given the challenge of securing witnesses.

Senior counsel Khwaja Ahmad Hosain responded that former CJP Ajmal Mian in the 1999 Sheikh Liaquat Hussain judgement had held that the best response to terrorists was to convict them in civilian courts as questions could not be raised about the credibility of such convictions.

Justice Rizvi, however, remi­nded that the Sheikh Liaquat Hussain case concerned the incidents of terrorism relating to Karachi but the entire country was witnessing a wave of terrorism and at least two or more provinces were in the grip of this menace. Though the country was not facing any movement like ‘Mukti Bahini’ today, the entire nation was under siege by civilian terrorists, regretted Justice Rizvi.

Justice Jamal Khan Mando­khail observed that acquitting 100 offenders was preferable to sentencing a single innocent, as punishing the innocent was a grave injustice and a sin.

Justice Mandokhail also shared his experience when six Balochistan High Court judges were saved simply because an explosive device planted on their path went off five minutes earlier. Had the perpetrators been successful, six judges would have lost their lives, Justice Mandokhail observed, adding Pakistan stands at 130 globally in the ranking for rule of law and justice, since courts had to acquit the accused due to the absence of witnesses.

However, Justice Mando­khail questioned whether the country had truly benefited from the implementation of the 21st Amendment, which was introduced to try terrorists in military courts and later extended for another two years.

Right to fair trial

The counsel, however, reiterated the right to a fair trial while referring to the May 15 press release by the ISPR, in which the corps commanders had determined that they had “irrefutable evidence” regarding the May 9 incidents of a coordinated attack on the army installations.

In the presence of this finding, it would be challenging for junior officers under their command to acquit any accused in the court martial process, the counsel feared. He appreciated the contribution of the Shuhuda and agreed their families deserved justice. But at the same time, the counsel cautioned that the accused and their families deserved justice and a fair trial.

When asked about the status of Indian Spy Kulbhushan Jadhav after the Oct 23, 2023 judgement of striking down the law, the counsel responded that his status remains unchanged as the ruling did not impact any concluded or pending court martial where a remedy of review and reconsideration had been provided. The counsel then focused on the provisions of the PAA and the Army Rules and submitted that there was no right to counsel in a Field General Court Martial.

Although the army authorities may allow a counsel, this was at their discretion, adding that it would be a remarkable finding if the Supreme Court in this case endorsed as fair a process where there was no legal right to a lawyer.

Published in Dawn, February 1st, 2025