ISLAMABAD: The Supreme Court raised critical questions about the scope of the Army Act, and Jamal Khan Mandokhel said the executive cannot play the role of the judiciary.
A seven-member SC constitutional bench, headed by Justice Aminuddin Khan, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by the military courts.
At the onset of the hearing, Justice Amin delisted all other cases before the bench and decided to hear only the case of military courts.
Trial of civilians under the Army Act: CB’s Mandokhail raises concerns over legitimacy
Advocate Khawaja Haris, representing Ministry of Defence, argued that in the past the apex court had declared that the civilians can be court-martialed under Army Act. He contended that civilians could face trial under the Army Act if they committed crimes listed in the law.
Justice Jamal Mandokhel questioned who were the aggrieved party and appellant in the present case. Khawaja Haris responded that the Ministry of Defence has filed an appeal.
Justice Mandokhel inquired is the Ministry of Defense executive? Whether an executive body like the Ministry of Defence could act as both accuser and judge. If there is a crime against the executive, will it become a judge and decide? He maintained that the division of power in the Constitution is very clear. “The constitution clearly prohibits the executive from performing judicial functions,” he said.
Justice Mandokhel noted that the Army Act was designed to maintain discipline within the armed forces. Extending it to civilians requires clear justification. There is a basic constitutional question when it comes to military courts.
The defence counsel said if there was no other forum available, then the executive could make a decision.
Upon that, Justice Mandokhel said that anti-terrorism courts served as the relevant forums under the law. “How can the executive itself become a judge while being a legal forum?” he wondered, to which, Haris said he agreed with the justice’s remarks.
Justice Mandokhel observed that Article 8(3) of the Constitution was about discipline and performance of the army. “Can criminal matters be included in Article 8(3)?” he said, and added that the Constitution mentioned citizens of Pakistan, not just citizens.
“Those belonging to the Pakistani armed forces were equal citizens, just like other civilians,” Haris said.
“The question is how people of the armed forces can be deprived of fundamental rights,” Justice Mandokhel said.
The back-and-forth arguments between the two continued, with Haris asserting that the Army Act could not be challenged based on fundamental constitutional rights.
If a citizen becomes part of army, can he be deprived of his fundamental rights, Justice Mandokhel asked.
The bench also debated whether disobeying military orders, such as approaching a restricted checkpoint, could be considered interference with the armed forces’ duties. “If a citizen, despite being stopped, wants to go to a military check-point, then what will happen? Will the citizen be tried in military courts?” Justice Mandokhail remarked.
“Well, now you’ve mentioned a particular situation, I can’t say anything about that,” Haris admitted, referring to the May 9 riots.
Justice Mussarat Hilali highlighted the broader implications of expanding military courts’ jurisdiction, stating, “The key question is whether civilians can be tried at all.”
Justice Muhammad Ali Mazhar noted that simply standing near a military check-point does not warrant a trial under the Army Act. “If he is found guilty of an offence under the Army Act, then the trial will go on,” he added.
Before the conclusion, Hafeezullah Niazi, a senior journalist and father of a convicted civilian, raised concerns over the treatment of his son, who was transferred to prison following a recent military court sentence.
“Despite being moved to jail, my son is not being treated as per the jail manual,” Niazi stated, highlighting that 22 convicts are held in Lahore Jail’s high-security zone under similar conditions.
Justice Mussarat Hilali remarked that the Supreme Court had directed authorities to ensure compliance with the jail manual. She said that Punjab and federal governments were “disregarding court’s orders”.
Meanwhile, Justice Muhammad Ali Mazhar pointed out that these individuals were not under trial but had already been sentenced, some receiving two- to 10-year sentences. The court also noted that detailed reasons for these sentences had not been provided.
The court requested reports from the Punjab government regarding the treatment of convicts transferred from military courts, demanding transparency about whether they were being treated in line with the jail manual. The case was adjourned until Wednesday (Jan 8).
Copyright Business Recorder, 2025
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