Limits were crossed during May 9 mayhem, says Justice Musarrat Hilali

• Seven-member constitutional bench hears the case.
• Judge says citing foreign examples would waste time.
• Lawyer reminded that party supported military courts.

ISLAMABAD: Supreme Court's Justice Musarrat Hilali has asked lawyer Salman Akram Raja to answer whether he acknowledged that a crime was committed on May 9, 2023, questioning why basic rights are now being emphasised after the limits were crossed during the incident.

"Limits were crossed on May 9, and now you remember basic rights?" Justice Hilali remarked as a seven-member constitutional bench, headed by Justice Amin-Ud-Din Khan, heard an intra-court appeal against the military trials of civilians on Thursday.

Raja, presenting convicted criminal Arzam Junaid, argued that in the United Kingdom, court-martial trials were conducted by high court-style judges rather than military officers, and the commanding officer can only refer serious cases to an independent forum.

However, Justice Amin-Ud-Din countered that the bench was concerned with Pakistan's legal framework and warned that unnecessary discussion on foreign laws would waste time.

Justice Muhammad Ali Mazhar further pointed out that British law was related to military discipline, whereas the current case involves civilians.

"How can such a law be applicable to civilians?" he questioned. To this, Raja responded that the British example was cited in the context of ensuring transparent and independent trials.

During the hearing, Justice Hilali said that the pending appeals seek the restoration of annulled provisions. She emphasised that if the provisions are to be reviewed, international laws must also be considered.

She added that had the provisions not been annulled, the arguments could have been irrelevant, but now they are not.

Justice Jamal Khan Mandokhail raised a critical question regarding the potential for civilians to undergo court-martial under the current legal system, to which Raja firmly responded that such a thing was not possible under any circumstances.

The proceedings also highlighted the ongoing struggle for justice by victims of the Army Public School (APS) attack, as Raja mentioned that despite their tragic loss, the victims are still deprived of a fair and just resolution.

Justice Amin-Ud-Din, in response, noted that achieving a fair trial would require navigating past certain legal hurdles, such as addressing Article 8(3) of the Constitution.

In another exchange, Justice Rizvi remarked that while the military has specialised corps such as engineering and medical and questioned whether there should also be a judicial corps within the army.

Raja further argued that simply accusing someone and depriving them of a fair trial is concerned with the issue of basic human rights.

Recalling that he had been falsely accused of conspiring with the Pakistan Trheeek-e-Insaf (PTI) to kill Rangers personnel and warned that if the law's provisions were restored, he could be forced to appear before a colonel — in a military trial.

To this, Justice Mazhar mentioned that an anti-terrorism section was likely added to the FIR against Raja, while Justice Amin-Ud-Din questioned whether a military custody request had been made in his case.

Raja replied that his case was an example of how the system works, where an accusation alone can lead to a civilian facing military trial.

Justice Mandokhail advised Raja to focus on facts and avoid speculation, urging him to remain grounded in the context of the case.

Moving forward, Justice Hilali remarked that when the 21st Constitutional Amendment was enacted, your [Raja's] party supported the establishment of military courts.

Or, the judge said, she could say that at least one political party had supported military courts under the 21st Constitutional Amendment.

Raja clarified that he did not represent any political party and acknowledged that their support for military courts in the past had been a mistake.

Justice Hilali, however, questioned whether it was appropriate to label past decisions as mistakes — now that the political landscape had changed.

The court also deliberated on the provision in the 21st Amendment that exempted political parties from military trials, with Justice Mandokhail remarking that it was a positive aspect.

The hearing was adjourned until February 18, with Raja scheduled to continue his arguments on that date.