December 12, 2024
ISLAMABAD: During a hearing of intra-court appeals challenging military court decisions, Supreme Court Justice Jamal Khan Mandokhail raised concerns over the legitimacy of trying civilians under the armed forces’ disciplinary framework. The case involves appeals against decisions made by military courts, with a seven-member constitutional bench, led by Justice Aminuddin Khan, conducting the hearing. The bench also includes Justices Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Naeem Akhtar Afghan, Musarrat Hilali, and Shahid Bilal Hassan.
Representing the federal government, senior lawyer Khawaja Haris argued that the cases primarily concern Article 8 of the Constitution. However, Justice Mandokhail questioned the application of military discipline to civilians, stating, “How can an individual, not part of the armed forces, be subjected to its disciplinary code?” He drew an analogy to departmental codes, noting that while someone working in agriculture might be subject to its discipline, the same logic did not seem to apply to civilians under military jurisdiction.
In response, Advocate Haris stated that if the law permits, the discipline could apply to civilians. Justice Hilali highlighted the issue of limited access to FIR copies for individuals held in military custody, while Justice Mazhar sought clarification on the grounds used by a previous bench to determine the incompatibility of the Army Act with Article 8.
Haris further argued that, under specific circumstances, civilians could fall under the jurisdiction of the Army Act, and that the court lacked authority to invalidate provisions of this law. Justice Mandokhail raised further questions about whether the Army Act rendered Section 1 of Article 8 of the Constitution ineffective and whether civilians could be subjected to military trials merely for contemplating incitement.
Advocate Haris responded that even in military trials, the right to a fair trial, as enshrined in Article 10-A, was preserved. Justice Mazhar noted that the constitutional bench was empowered to review constitutional issues in these appeals.
Justice Mandokhail asked whether someone attacking a military installation would be tried in a military court, while an attack on the President’s House would be heard in an anti-terrorism court. Haris explained that such decisions were made through legislative measures. Justice Hilali inquired about the provision of legal counsel and relevant materials in military court trials. Haris confirmed that both legal representation and necessary evidence were provided in military trials.
The bench also discussed a hypothetical scenario in which a soldier murders an officer, where Haris affirmed that the case would be tried in a civilian court. Justice Mandokhail raised further concerns about how civilians, who are not subject to the Army Act, could be deprived of their fundamental rights in such proceedings.
In a landmark decision on October 23, 2023, the Supreme Court, in a unanimous five-member ruling, declared the trial of civilians in military courts to be null and void. The decision followed petitions challenging the trial of civilians involved in the May 9 riots. However, on December 13, 2023, a six-member bench, with Justice Hilali dissenting, suspended the ruling.
The Pakistan Tehreek-e-Insaf (PTI) party criticized the Supreme Court’s 5-1 decision to suspend the ruling as a “judicial coup.” More than 100 civilians, allegedly involved in the ransacking of military installations during the May 9 protests following PTI founder Imran Khan’s arrest, are currently facing military trials.
Conclusion
The ongoing legal proceedings underscore the deep constitutional and legal challenges surrounding the trial of civilians under military jurisdiction. As the Supreme Court continues to review the matter, the outcome will have significant implications for the future of civilian rights, military law, and the separation of powers in Pakistan’s legal system. The case has sparked a wider debate on the limits of military authority and the protection of fundamental rights within the judicial process.