MoD lawyer tells SC CB: Parliament can revive military courts, if it so desires

ISLAMABAD: The Defence Ministry’s lawyer told the Constitution Bench of the Supreme Court, if Parliament wants, it can restructure or recreate the military justice system.

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

Khawaja Haris, representing the Ministry of Defence, said if the Parliament wants then it can restructure or recreate the military justice system. He said; “We all want an independent forum, but are bound by the constitution, particularly the judges who have taken oath to defend and preserve the constitution.”

Haris said when a nine-member bench, larger than the present one declared that neither Article 175 nor Article 203 of the constitution apply to the military courts, set up under Pakistan Army Act, 1952, then the incumbent bench can’t depart from the findings of the earlier judgments, and if it does then would override them. He further said it is precedent that the judgments of the larger bench are followed by the smaller bench.

Justice Muhammad Ali Mazhar asked the counsel of the Defence Ministry to provide a brief summary of all the Supreme Court judgments on military courts announced till date. He noted that there were so many judgments of the Supreme Court on military courts but none of them kept military courts outside the ambit of Article 175(3).

Justice Jamal Khan Mandokhel questioned whether the constitution except Article 175(3) allows the trial of civilians by the military courts. He noted that the instant matter is the case of first impression, adding the FB Ali judgment in the present scenario is not complete because that was passed under 1962 Constitution and not in view of 1973, wherein, we have Article 10A regarding fair trial and due process.

He contended that trial of civilians by the military courts is the ancillary or subsidiary function. Justice MusarratHilali questioned why there was no permanent court under Army Act. She recalled that the Peshawar High Court many times had interfered in the verdicts of military courts, adding that the High Court did that because of the strength of the Constitution.

Haris said only those citizens could be tried by the military court who commit an offence which is of such nature that affects the armed forces or defence of Pakistan. He said if a civilian enters into a prohibited area or has a nexus with the member(s) of armed forces then he can be tried by military courts.

Justice Naeem Akhtar said that entering a prohibited area is an offence under Official Secrets Act but violation of it is tried under Army Act. He said the Cantonments are considered prohibited areas, and for entering into many Cantonments one need special pass, adding; “If I don’t have a pass, but want to go there and enter forcefully then would I be treated an accused under Section 2(1)(d) of the Army Act?”

He said that in the Cantonments of Lahore, Gujranwala, Rawalpindi and other cities many commercial centres and shopping malls and food courts have opened, and people like to go there for shopping and eating purpose, but do not pass and if they enter forcefully then would they become subject of Army Act?

However, Justice Mazhar said that there are many cantonments in Karachi, but those are not prohibited areas. He said in Clifton, which is also a cantonment, there are many shopping malls and commercial people go there on a daily basis, no one stops them. Justice Syed Hassan Azhar Rizvi said there are seven cantonments in Karachi, adding that Anti-Terrorism Courts in Karachi are also in the cantonment areas, people go there daily.

Justice Mandokhel said that in Quetta if people are entering from the airport side then they are stopped from entering into the cantonment area; therefore, daily people fight with the police posted there.

Justice Mazhar said people are stopped from entering only those areas which have military installation and armament and declared prohibited through notification. The case was adjourned until April 15.

Copyright Business Recorder, 2025