SC curious about right to appeal after military trials

• AGP asked to explain status of proposed legislation, mentioned by law officer two years ago
• Judge says permission to challenge military court order necessary for fair trial

ISLAMABAD: The Supreme Court’s constitutional bench has asked the attorney general for Pakistan (AGP) to explain his 2023 statement about granting the right to appeal to those convicted by military courts.

The seven-judge bench issued the directive on Tuesday while hearing a set of 38 appeals against the Oct 23, 2023, judgment of the Supreme Court, nullifying the military trial of civilians accused of violence on May 9.

The statement made by AGP Mansoor Usman Awan before the SC bench in 2023 came up during the hearing of the appeals.

During a hearing on Aug 2, 2023, the AGP had told a five-judge SC bench that the government was working on legislation to give the right of appeal to those convicted of attacking military installations on May 9.

He had told the bench that the government would amend the Pakistan Army Act (PAA) and the Official Secrets Act (OSA) to allow for the convicts’ appeal.

During the hearing on Tuesday, Justice Musarrat Hilali asked about the status of those amendments.

The judge observed that the Constitution protects the rights of civilians and ensures their enforcement.

When a convict is sentenced by the military court under PAA, they don’t get the right to appeal the decision before any independent forum, the judge observed.

This was unlike the practice in India, where independent forums had been provided for such appeals.

Justice Aminuddin Khan, who was heading the constitutional bench, asked Additional Attorney General Chaudhry Aamir Rehman to convey to the AGP to appear in person and explain his statement.

The AGP will likely be asked to explain his position today (Wednesday) after the Ministry of Defence’s counsel, Khawaja Haris Ahmed, concludes his arguments.

Justice Khan, the constitutional bench head, recalled that the AGP’s statement was also reproduced by Justice Ayesha A. Malik in her detailed reasons explaining why the five-judge bench had nullified the military trial of civilians involved in the May 9 violence.

The AGP had also assured the previous Supreme Court bench that no offence carrying the death penalty or a lengthy sentence would be made against any detained civilian.

The accused will also have the right to appoint private lawyers, while family members and the legal team of the accused will be allowed to attend trial proceedings, AGP Awan had told the court in 2023.

The evidence would be recorded during the trial as per the law and procedure in regular criminal court. Besides, the judgement delivered in the trial of the accused would be supported by reasons, he had said.

During the hearing on Tuesday, Justice Muhammad Ali Mazhar recalled certain points regarding the AGP’s statement on the right to appeal were also mentioned by the bench in its order nullifying the military trial.

What is the guarantee that rights are granted during the military trial of civilians, asked Justice Mazhar.

He referred to the International Court of Justice’s judgement asking Pakistan to ensure counsellor access to Indian spy Commander Kulbushan Sudhir Jadhav.

During the hearing, Justice Jamal Khan Mandokhail emphasised the need to ensure a free trial.

He said that for a free trial, the accused should be allowed the right to appeal before an independent forum.

The judge also remarked that every offence was against the interest of the State and wondered whether the attack on Jaffar Express last month was against the interest of the state or not.

Justice Mandokhail also questioned the reason for bringing civilians into the ambit of the PAA.

Mr Ahmed, the defence ministry’s counsel, contended the role of the armed forces was to defend the country.

However, they would not be able to maintain discipline among their ranks if distracted through conspiracies or faced with mutiny, he aruged.

The counsel explained that whenever a civilian seduces the personnel of armed forces not to discharge their official duties, they will become subject to army laws and tried through military courts since discipline has to be maintained in armed forces at all cost.

The counsel emphasised that the Constitution, which conferred rights on citizens, also created exceptions in certain cases.

Published in media, April 9th, 2025