ISLAMABAD: The Supreme Court has been urged to hold that when the civilian courts are functioning, civilians not in active service cannot be tried in military courts.

The former chief justice of Pakistan, Jawwad S Khawaja, on Tuesday, filed a constitutional petition under Article 184(3) of the constitution through Muhammad Ozair Chughtai and cited the Federation through secretaries Ministry of Law and Justice and Ministry of Defence and chief secretaries of all the provinces as respondents.

The petitioner submitted that the court martial of civilians and Article 2(1) (d) (i) and (ii) of the Pakistan Army Act 1952 should be declared unconstitutional on the grounds:

Aitzaz moves SC against trial of civilians in military courts

a) The Pakistan Army Act 1952 is meant for maintaining internal discipline of the armed forces and cannot extend to civilians when the ordinary courts are functioning;

b) The trial of civilians by military courts when the armed forces are called in aid of civil power is contrary to Article 245 of the Constitution as it displaces civil power and does not “aid” it;

c) The military, as part of the executive, cannot undertake trials as judicial power can only be exercised by the judiciary. The trial of civilians by military courts also infringes upon Article 175 (3) of the Constitution and is contrary to the separation of powers.

The petitioner has clarified that he has no personal interest in this case, and seeking relief for the benefit of all citizens regardless of political affiliation.

He questioned whether civilians can be court-martialed under the constitutional framework of Pakistan, when civilian courts are functioning, adding under no circumstance can civilians who are not in active service be tried in military courts.

The petition said that the government and the armed forces have indicated that they propose to court martial certain civilians for involvement in offences allegedly committed on 9th May 2023.

In spite of the fact that the allegations revolve around attacks on or offences in respect of property within cantonments or so-called military installations, the petitioner submitted that any such alleged offences by civilians may only be tried by ordinary criminal courts.

This fundamental right is enshrined in Article 10-A of the Constitution. This right is violated when civilians are court-martialed. The recognised ingredients of a fair trial include an open hearing by a competent and independent forum and the right to counsel of choice.

Copyright Business Recorder, 2023