Civilians’ trial in military courts: Grounds delineated in RDBA judgment may apply in present case: AGP tells SC

ISLAMABAD: The Attorney General for Pakistan (AGP) told the Constitutional Bench of the Supreme Court that grounds delineated in Rawalpindi District Bar Association (RDBA) judgment for challenging Court Martial’s verdict may apply in the present case.

Three grounds – mala fide, coram non judice and without jurisdiction – were provided in the Supreme Court judgment in RDBA case for challenging the decision of military courts.

The court focused on whether those tried in military courts have been granted the constitutional right to appeal and fair trial. “We have been asking about the right to appeal because it is a fundamental right,” Justice Mandokhail noted.

AGP Usman Mansoor Awan said the apex court, if so desire, can add another ground (right of appeal], adding he would make submission upon the completion of Ministry of Defence counsel’s arguments in rebuttal.

The AGP on 21st July 2023 had assured a six-member bench, headed by ex-CJP Umar Ata Bandial, that reasons will be recorded in military courts’ orders; and the accused persons will be allowed to engage private counsel of his choice. He; however, had submitted that the right of appeal against the final decision of the Court Martial was introduced in the Army Act through an amendment in 1992. The appeal within the army system is heard by an army officer to the rank of Major General.

“After that procedure accused can challenge the verdict of military court under Article 199 of the constitution on three grounds (mala fide, coram non judice, and without jurisdiction) laid down in Rawalpindi District Bar Association case. The accused can also approach the Supreme Court against the High Court judgment under Article 185 of the constitution.”

Regarding appeal before the judicial forum or retired judge, as happens in India, the AGP had mentioned that more consideration is required, due to Kulbhushan Jadhav case and international implication, and had sought one month to consider the aspect of providing appeal before ordinary courts, that may be done through legislation, the AGP had made this submission on 21-07-23.

During the proceeding, Justice Jamal Khan Mandokhail asked the AGP that due to your statement the bench (headed by Justice Bandial) has passed an order. Justice Muhammad Ali Mazhar told the attorney general that his statement was quoted in the Court order.

The attorney general responded that he had made statement on 21-07-23 while the final order on petitions against military court was delivered in October 2023, saying it has been the Court practice that interim order is merged in the final order.

Justice Mandokhail said they want right of appeal for civilians, tried by Court Martial. Justice Musarrat Hilali added right of appeal should be before an independent judicial forum. She inquired what is an issue in providing right of appeal.

Justice Hilali said criticism intensifies when civilian courts delay proceedings. “If a judge goes on leave, it becomes a national issue that trials are delayed,” she said, and noted that military courts are not regular court, and the trial there is conducted with “Kalashnikov”.

Justice Mazhar questioned when in view of International Court of Justice (ICJ) judgment a foreign national could be provided fair trial and appeal right, then why not to our own citizens. The attorney general said in Kulbhushan Jadhav case the fair trial was provided through Consular Access.

Justice Mandokhail questioned how an institution that has acted as a complainant can also preside over the trial. “How can an institution that has itself been the complainant also hear the case,” he remarked.

Justice Mandokhail further questioned why deprive citizens of their fundamental rights by holding their trial in military courts. Justice Mazhar said they were not aware whether trial before Court Martial was irregular, accused were provided counsels of their choice, as the military court verdicts were not before them. “Our main concern is the right of appeal to the accused,” he added.

The attorney general said that record of trial would be furnished before the apex court. Justice Mandokhail remarked that when an accused is unaware of his case then what is the use of rights given in Army Rules.

Justice Hilali said there are many countries which have provided right of appeal in the laws. The AGP, referring the terrorist attacks, said no country in the world has become hotbed of terrorism.

Justice Mandokhail asked why the federal and the provincial governments do not have trust in judicial system, adding why they like to destroy the institutions. He further said if the situation of country is so worst then it does not mean to lock the Courts.

The attorney general said the terrorists are danger for the courts and judges as well. However, Justice Mandokhail said the terrorists, involved in heinous crimes, also have fundamental rights, adding “prevention is better than cure”. “We accept this argument that Court Martial are established for maintaining discipline within army, but have concern to extend its jurisdiction to try civilians.” “We don’t want an innocent sentenced,” said Justice Mandokhail.

Khawaja Haris, in his argument, pointed out contradiction in the impugned judgment regarding Article 175 of the constitution.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2025