Convictions by military courts: Deliberations under way on right of appeal, SC told

ISLAMABAD: The Constitutional Bench of the Supreme Court was informed that deliberations are going on to provide right of appeal to people sentenced by the military courts in 9th May incidents.

During the proceeding, Justice Aminuddin asked Khawaja Haris to complete his arguments by tomorrow (Thursday). He then told Additional Attorney General Aamir Rehman to ask the AGP Mansoor Usman Awan to come to the Court regarding right of appeal against the military courts judgment tomorrow.

AAG Aamir stated that the deliberation on Court’s query about appeal is going on, and it will take two to three days.

A seven-member Constitutional Bench, headed by Justice Aminuddin Khan, on Wednesday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.

Khawaja Haris, representing the Ministry of Defence, said it was argued by the respondents that when right of appeal can be granted to a foreign spy then why it could be extended to our own citizens. He added but they did not consider that right was extended due to the Vienna Convention.

Pakistan Tehreek-e-Insaf (PTI) government in 2021 had enacted International Court of Justice (Review and Re-consideration) Act, 2021 to provide Indian spy Kulbhushan Jadhav a right to file a petition before the High Court against the military court’s verdict in light of ICJ judgment regarding Consular Access under Article 36 of the Vienna Convention of Consular Relations of 24 April 1963.

Khawaja Haris argued that according to the law the aggrieved foreign national either himself or through his authorised representative, or through a consular officer of a mission of his country, or in default the secretary Ministry of Law may file a petition before the High Court for review and re-consideration of his case in respect of rights available under the Vienna Convention.

The Court in deciding the petition shall examine whether any prejudice has been caused to the foreign national in respect of his right of defence, right to evidence and principle of fair trial, due to denial of consular access according to the Vienna Convention.

Justice Muhammad Ali Mazhar noted that review provided in the law in pith and substance was akin to appeal against the judgment, adding the review petition against a judgment is only limited to error floating on the record. He said that an independent forum was created for a foreign national, adding the re-consideration is alien to the constitution.

Haris contended that the independent forum created was for a limited purpose. He said if before a military court an accused is not in a position to engage the lawyer then he is provided counsel at the State expenses.

AAG Aamir Rehman informed the bench that Kulbhushan Jadhav did not exercise his right of appeal. However, the Ministry of Law and Justice had filed a petition before the Islamabad High Court. He said that the law was not enacted for Kulbhushan but for other foreign national arrested in Pakistan on charges of espionage.

Khawaja Haris maintained that this appeal as such that does not distinguish any terrorist. He said reappraisal was for what had happened in the trial before the military court. If the window was opened, then that was because of the International Court of Justice (ICJ) verdict on consular access under Vienna Convention.

Justice Musarrat Hilali stated that when Justice Waqar Seth had delivered the judgment against the military courts’ verdict then everyone in Pakistan had criticised him, but when his judgment was quoted and read out before the ICJ then it was not only lauded but shown on TV channels.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2025