The Supreme Court’s Constitutional Bench hearing the appeals against the trial of civilians in military courts was told that the ordinary civilians do not fall under the Army Act, reported 24NewsHD TV channel.
During proceedings on Friday, the Constitutional Bench Justice Musarrat Hilali questioned the comparison between the 2014 APS attack and the May 9 protests.
Led by Justice Aminuddin Khan, the seven-judge bench heard arguments from Khawaja Ahmad Hussain, the lawyer representing Justice (retd) Jawad S Khawaja, who maintained "Ordinary civilians do not fall under the Army Act, which applies to Pakistan’s military personnel and civilian employees of the Armed Forces."
Justice Hassan Azhar Rizvi inquired whether the Army Act applies to attacks on airbases. Justice Hilali added, "The APS attack was an act of terrorism, whereas May 9 was a protest. What differentiates the civilians involved?"
Khawaja Hussain explained that the APS attack led to the 21st Constitutional Amendment, enabling military trials of those responsible for terrorism. "May 9 protesters should be tried, but not in military courts," Khawaja Hussain argued.
Justice Aminuddin Khan acknowledged that the court has the authority to review any legislation contradicting the Constitution.
Justice Musarrat Hilali remarked, "All the children killed in the APS attack were civilians."
During the proceedings, Khawaja Hussain referred to the May 9 statement issued by the ISPR. He stated, "ISPR released a statement on May 15 regarding the May 9 events. Do you have objections to the statement?"
The lawyer responded, "I have no objection to the first part of the statement. However, the statement asserts that there is irrefutable evidence of the May 9 incidents. How can a military trial be fair after such a statement? If the military is a party in the case, how can it ensure justice?"
Justice Musarrat Hilali remarked that the lawyer's arguments pertain to the merits of the case, while Justice Aminuddin Khan advised the lawyer to confine his arguments to legal matters.
The lawyer maintained, "A victim cannot conduct an impartial trial."
Justice Hassan Azhar Rizvi inquired, "If a foreign spy is captured in the future, where should their trial be conducted?"
The lawyer responded, "Such cases should be handled by anti-terrorism courts."
Justice Rizvi smiled and remarked, "Oh really?"
Justice Aminuddin Khan pointed out an inconsistency in the arguments, stating, "It is strange to declare a law null and void while also saying that special remedies should still be available."
Justice Muhammad Ali Mazhar asked, "Can Pakistan's armed forces use Section 2(1)(d)(2) of the Army Act in the future?"
The lawyer replied, "The reality is that in the future, this section cannot be applied. I would like to continue with my arguments."
The argument also touched Indian spy Kulbhushan Jadhav’s case, with Justice Ali Mazhar questioning how striking down Section 2(1)(d)(ii) of the Army Act could impact future espionage cases.
"If we invalidate this provision, where would trials for foreign spies be conducted?" Justice Rizvi asked. Khawaja Hussain responded that such cases could be tried in anti-terrorism courts. Justice Rizvi, smiling, replied: "Alright then."
Justice Aminuddin found it contradictory that the petitioners sought to strike down the Army Act provision while also advocating for special exemptions.
The court later adjourned the hearing until Monday, February 3.
Reporter Amanat Gishkori