- Justice questions Army Act’s scope in military trial hearings.
- Court debates Article 245’s limits on military judicial powers.
- Judges raise concerns over executive role in military trials.
ISLAMABAD: Supreme Court’s Justice Jamal Khan Mandokhail on Monday said that understanding the purpose of the Army Act would solve half the military trials issue.
The remarks came as a seven-member constitutional bench of the Supreme Court, headed by Justice Amin-ud-Din Khan, including Justice Mandokhail, Justice Muhammad Ali Mazhar, Justice Naeem Afghan, Justice Musarrat Hilali heard intra-court appeals regarding the trial of civilians in military courts.
Last year, the apex court’s constitutional bench granted conditional permission to military courts to announce verdicts in cases involving 85 suspects — allegedly involved in the May 9, 2023, riots.
In its order on the hearing of the appeals against civilians’ military trial, the constitutional bench had said judgments of military courts would be conditional to the top court verdict on the cases pending before it.
Subsequently, the military courts sentenced 85 PTI activists for two to 10 years of “rigorous imprisonment” for their involvement in the May 9 protests, marking the conclusion of trials for those held in military custody over the attacks on army installations and monuments.
Later in January, the military accepted mercy pleas of 19 out of the 67 convicts sentenced in the May 9 riots case on “humanitarian grounds”, the Inter-Services Public Relations (ISPR) said.
The top court, in its unanimous verdict by a five-member bench, on October 23 2023 declared civilians’ trials in military courts null and void after it admitted the petitions challenging the trial of civilians involved in the May 9 riots.
During today’s hearing, Uzair Bhandari, the lawyer representing Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, presented his arguments.
He argued that stated that even if the Army Act is annulled, the anti-terrorism law remains in place. He added that when multiple legal forums existed, it must be determined where the fundamental rights of the accused could be best ensured. He further argued that Article 245 of the Constitution did not grant judicial powers to the military.
At this, Justice Mandokhail questioned: “Is court martial not a judicial proceeding?” In response, Bhandari said that the court martial is indeed a judicial authority but only for military personnel, not for civilians.
Meanwhile, Justice Amin-ud-Din marked that a category of civilians also fell under the Army Act and questioned how it would be determined which civilians came under its jurisdiction and which did not.
Justice Mandokhail here noted that the Constitution granted the military two types of powers — one for defence and the other for assisting the civil government.
Justice Amin-ud-Din further stated that if the argument based on Article 245 is accepted, then how would the military defend its own institutions? He questioned whether, in the event of an attack on the General Headquarters (GHQ), authorities would have to wait for an Article 245 notification.
At this, Imran’s lawyer responded that if someone is firing bullets, no permission is needed for defence. In case of an attack, all institutions, including the police and military, take action, he added.
“The Supreme Court has already settled this point in the Liaquat Hussain case, ruling that if the military arrests an attacker, they must hand them over to civil authorities. However, the military can assist civil authorities regarding the detainee,” he contended.
Justice Afghan questioned: “If a military officer and a civilian together violate the Official Secrets Act, where will the trial take place?”
Lawyer Bhandari replied that the trial would be conducted in an anti-terrorism court in such a case.
This was the point when Justice Mandokhail remarked: “If we understand the purpose of the making the Army Act, half the issue will be resolved.”
He added that the Constitution clearly stated that it was a law related to the armed forces. He noted that in disciplinary action against a civilian officer, the power to impose punishment had not been granted, whereas military courts had been given this authority.
He further questioned: “If an army officer commits a crime while on leave, where will the trial be held? Is the jurisdiction of military courts very broad or limited?”
He pointed out that in Karachi, the trial of Rangers personnel was conducted in a civil court.
Justice Mandokhail remarked that the Constitution is made by Parliament, and legislation could only be done in accordance with the Constitution. “No law can be made that contradicts the Constitution. Our dilemma is that laws are sacrificed for politics,” he added
The justice noted that lawyer Salman Akram Raja, who was representing a convict, had mentioned a separate forum for court-martial in India.
In response, Justice Mazhar said that in his view, Raja’s stance was different.
Justice Mandokhail, at this, added that the court was not bound by arguments and could make decisions independently based on the Constitution.
He questioned: “If Parliament is attacked, will it establish a separate court for trial?” He said that the executive and judiciary are kept separate under the Constitution, whereas in military trials, the complainant itself is the executive. “Can a complainant be the judge of their own case?” he asked.
Bhandari argued that if the Army Act permits the military trial of civilians, more offences could eventually be added under it.
In response, Justice Amin-ud-Din said: “You are citing Article 245, but that is a completely separate matter.” Meanwhile, Justice Mazhar remarked: “Calling in the military under Article 245 does not mean granting it the authority to run courts.”
Justice Mandokhail asked: “Can we declare the prime minister’s order null and void?” At this, lawyer Bhandari said that the court could do so.
Justice Amin-ud-Din then remarked that no prime minister had never completed five years in office. Justice Hilali rephrased the remark as “there has never been a brave premier who has completed five years.”
Justice Mandokhail, meanwhile, commented that “we have even legitimised military dictators”.
Later, the constitutional bench adjourned the hearing on the case related to the trial of civilians in military courts until tomorrow.
