The Supreme Court was told on Monday that under no circumstances, civilians can be tried in military courts while military courts cannot be established without constitutional amendment.
Justice Muhammad Ali Mazhar remarked that the section related to trial of civilians in the Army Act was to be reviewed by the Parliament within two years of FB Ali’s case, but that has not been done so far.
A seven-member constitutional bench of the apex court headed by Justice Amin-ud-Din Khan heard the Intra Court Appeals (ICAs) of the Federal government and the Ministry of Defence against the apex court judgment declaring trial of civilians in military courts as unconstitutional. Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Hamid Khan, counsel for Lahore High Court Bar Association, while continuing his arguments, declared trial of civilians in military courts as unconstitutional, saying under no circumstances, civilians can be tried in military courts. He submitted that the military is part of the executive and cannot exercise judicial powers. However, Justice Jamal Mandokhail remarked that the real issue is not whether civilians should be tried in military courts, but rather what happens when civilians commit offences under the Army Act.
Hamid Khan submitted that military courts cannot be established without a constitutional amendment, adding that any constitutional amendment allowing military courts can only be for a limited duration and must grant the right to appeal against military court verdicts.
Justice Muhammad Ali Mazhar asked the learned counsel that after the 26th Amendment, where appeals against military court decisions could be filed. Hamid Khan replied that a writ petition could be filed in the High Court, but its jurisdiction in such matters is limited. The learned counsel contended that the provisions of the Army Act that allow for civilian trials are unconstitutional. Justice Jamal Khan Mandokhail asked Khan whether, under Article 175(3) of the Constitution, the judiciary is automatically considered separate from the executive. Hamid Khan responded that the wording of the Constitution is clear and does not require a parliamentary declaration for this separation. “It means that after 14 years of this Article, military courts cannot be established even for members of armed forces,“ Justice Jamal Khan Mandokhail told the learned counsel. Hamid Khan, however, submitted that military courts can only be established for members of the armed forces.
At this, Justice Muhammad Ali Mazhar told the learned counsel that if that is the case, then he will have to accept that military courts constitute a parallel judicial system, adding that this is very important and Article 175(3) will also have to be clear as well in this regard. Justice Muhammad Ali Mazhar observed that in majority judgment, the Supreme Court has held that military courts do not fall under Article 175(3) of the Constitution.
Justice Jamal Khan Mandokhail remarked that it was settled in FB Ali’s case that the Army Act was made for members of the armed forces, adding that it was also held in the case that ‘Section D’ of the Army Act was not made for this purpose as well. “Now the dispute is that in FB Ali’s case they say that civilians could be tried in military courts whereas you say that it does not permit,” Justice Jamal Khan Mandokhail told Hamid Khan. Hamid Khan, however, submitted that those arguing in favor of military courts relied upon Article 8(3) of the constitution. Similarly, Justice Muhammad Ali Mazhar remarked that it was held in FB Ali’s case that Parliament can review this matter in two years. “But Parliament has done nothing so far in this regard,” Justice Mazhar added.
Meanwhile, Hamid Khan concluded his arguments following which the court adjourned the hearing for today (Tuesday) wherein, Khwaja Haris, counsel for the Ministry of Defence, will commence his arguments in rebuttal.
