Civilians trial by military courts ‘How govts of Punjab, KP aggrieved by SC judgement’

ISLAMABAD: Justice Jamal Khan Mandokhel questioned how the governments of the Punjab and Balochistan are aggrieved by the judgement of the Supreme Court on trial of civilians by military courts.

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

Khawaja Haris, who represented Ministry of Defence, concluded his arguments.

The lawyers of federation, Ministry of Interior, Minister of Law and Justice, the Punjab and Balochistan governments, and Shuhada Foundation adopted the arguments of Khawaja Haris.

Justice Mandokhel inquired what prejudice has caused to the provinces through this judgement. He noted as there was no grievance against any province; therefore, the Sindh and Khyber Pakhtunkhwa governments had withdrawn ICAs.

Earlier, Khawaja Haris contended that since the introduction of paras (i) and (ii) in clause (d) of sub-section (1) of Section 2 of the Pakistan Army Act, 1952, the civilians who are triable by virtue of the said provisions of law have been placed at par with the members of the Armed Forces by the Constitution (First Amendment) Act, 1974.

He said in light of Imrana Tiwana judgment, Section 2(1)(d)(i) and (ii) of the Pakistan Army Act, 1952 are not ultra vires of any provision of the constitution, rather they are intra vires the Article 8(3)(a), Article 199(3) and Entry No1 read with Entry No58 and 59 to the Fourth Schedule of the Constitution.

The Ministry of Defence’s counsel contended that the respondents’ petitions are not maintainable under Article 184(3) of the Constitution so far as the challenge to the Section 2(1)(d) (i) and (ii) of the Pakistan Army Act, 1952 and form part of the Act, which is immune from challenge on the ground of Fundamental Rights by virtue of Article 8(3)(a) of the Constitution. Since fundamental rights could not have been invoked by the respondents for challenging the Section 2(1)(d)(i) and (ii) of the Act, therefore, the apex court cannot give direction under Article 184(3).

Justice Mandokhel said there is no question that Army Act is not a valid law, but it is limited to certain class of persons. He said the offences “wage war against Pakistan, attack military installations, attack army officers” were not the offences before 21st Amendment Act.

Khawaja Haris replied that all these offences were the offences under Section 3 of Official Secrets Act, 1923, and the persons found guilty of these offences were tried by the military courts. He submitted that the cases of those persons arrested because of 9th May riots and tried by the Courts Martial, and whose trial have been completed cannot be adjudged on the basis of fundamental rights, as they have remedy by way of judicial review before the respective High Courts on the grounds settled in Rawalpindi District Bar Association and Said Zaman cases.

Justice Syed Hasan Azhar Rizvi questioned what happened in cases where Mehran Base, GHQ and Kamra airbase were attacked. He also asked where trials of terrorists who raided the installations were held? Additional Attorney General Aamir Rehman replied their trials were held in military courts.

Khawaja Ahmed Hassan, appearing on behalf of ex-CJP Jawad S Khawaja, said Section 2(1)(d)i and ii are ultra vires not on the basis of Article 8(5) of the Constitution but on the basis of Article 10A of the Constitution of fair trial and due process, and violate the fundamental rights.

“Our case was for the majesty of law”, he said and added; “We say if there is anything against persons [involved in 9th May incidents] then please try them before the civilian courts.” The military courts do not comply the requirement of Article 10A.

Justice Naeem Akhtar Afghan remarked that the petitions were filed before the apex court after 9th May. He questioned whether any accused of 9th May has challenged the transfer of his custody to military courts. He observed that the accused could have done so by filing writ petitions under Article 199 of the constitution before the High Courts, but no one did so.

Justice Hilali questioned can they [the 9th May accused] raise this issue at later stage, when trial of many have been concluded. Kh Hassan argued that after they had been subjected to unlawful process then writ remedy was no remedy. The custody could not be transferred to military.

“You can’t take away the fundamental rights of civilians”, he added.

The counsel argued that the fundamental rights in Article 8(3) excluded only to the extent of members of armed forces, but no civilian could be deprived of his/her FRs. It may be presumed that the process adopted by the military courts is meticulously fair, but here the question is of the FRs. He contended if the Court includes the civilians in Article 8(3) then the scope of Section 2(1)(d) of Army Act will be expanded. “Our objection is why military court and why not the civilians are tried in ordinary courts. Should the Court shut its eyes because of Article 8(3).”

The case was adjourned until Friday (Jan 31).

Copyright Business Recorder, 2025