ISLAMABAD: Justice Musarrat Hilali remarked that the trial of civilians in military courts was for the criminals like who attacked APS.

Can all civilians be treated the same way? She gave the remark during the hearing of a case related to civilians’ trial in military courts by the Constitutional Bench of the Supreme Court. Justice Hilali said the Constitution of Pakistan is not suspended. The lawyer replied that fundamental rights remain, and there are court decisions. She asked the lawyer whether all fundamental rights are suspended when one comes under the Army Act. Justice Jamal Mandokhail asked if the military court will try those [civilians] who attack army soldiers. Khawaja Haris responded that this case is not about determining who can be tried in the future. Justice Mandokhail remarked that it is said that the parliament is supreme, “but in my opinion the Constitution is supreme.” The justice observed that parliament indeed has the power to make laws defining what constitutes a crime. If parliament wishes, it can make a law stating that looking at someone with a crooked eye is a crime. Parliament also has the constitutional responsibility to establish the court where this crime will be tried.

The Constitution of Pakistan grants parliament this authority and responsibility. As proceedings started, Khawaja Haris, the counsel for the Ministry of Defense, argued that the judicial decision is based on Articles 8(5) and 8(3), and that both sub-articles are entirely different and cannot be combined. Justice Mandokhail stated that according to the Constitution, rules can be suspended but not abolished, and rights cannot be suspended under Article 5. Khawaja Haris argued that Article 233 has two parts: one deals with the Armed Forces and the other with civilians.  Justice Naeem Akhtar Afghan said that the five-member bench had declared some provisions of the Army Act void. If we also keep these provisions void, civilians cannot be tried in special courts. If we reach another conclusion, we will have to decide which civilians can be tried in special courts. Justice Afghan stated that there have been amendments to the Official Secrets Act in 2023. He asked how these amendments should be considered.  Justice Mazhar stated that there are some questions that will be taken up tomorrow and the hearing was adjourned. The seven-member Constitutional Bench, headed by Justice Ameenuddin Khan, and included Justices Jamal Mandokhail, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal Hassan, is hearing the case.