Civilians’ military trial: How can executive be judge of its own case, asks SC

ISLAMABAD: Supreme Court Judge Justice Muhammad Ali Mazhar Tuesday remarked that civilians could face military trial after committing an offence mentioned in the Army Act but standing simply near a military checkpoint did not warrant anything.

This observation from the apex court judge came during the hearing of the federal government’s Intra Court Appeals (ICAs) by a seven-member bench against the apex court judgment declaring the civilians’ trial in military courts unconstitutional.

Justice Amin-ud-Din Khan headed the bench comprising Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

The bench adjourned the hearing without conducting any proceedings on the petition of Pakistan Tehreek-e-Insaf (PTI) seeking probe into the alleged rigging in February 8, 2024 general elections as well as other cases. Justice Amin said the bench will only hear the ICAs in the military courts case. The judges questioned the scope of the Army Act while examining the legality of military courts trying the civilians. Resuming his arguments, Khwaja Haris, counsel for the defense ministry, submitted that the Supreme Court had already held in the past that civilians could be court-martialed under the Army Act.

When Justice Jamal asked the counsel as to who was the aggrieved party and who had filed an appeal in the instant case, Haris replied that the Ministry of Defense had filed the appeal. Justice Mandokhel observed that the Ministry of Defense was an institution of the executive and questioned if there was any offence against it and that if it could become a judge and decide the case.

The judge further observed that the Constitution had clearly mentioned the separation of powers making it clear that the executive could not perform judicial functions. “This is the basic question in the military court’s case,” Justice Mandokhel remarked.

Khwaja Haris, however, contended that when there was lack of any other forum, the executive could decide a matter. “But the forum of Anti-Terrorist Courts is quite available in the law, and having this forum how the executive itself can become a judge?” Justice Mandokhel questioned. He further observed that the Army Act had only been limited to the members of the armed forces. Khwaja Haris, however, did not agree and contended that the Army Act was not limited to the armed forces personnel adding that it had different categories, including civilians, in specific circumstances and he will extensively argue on it later on. Justice Mandokhel referred to Article 8(3) and observed that it talked about the discipline of armed forces as well as its performance.

“Whether criminal matters could fall under Article 8(3)?” Justice Mandokhel asked the counsel. Khwaja Haris, however, replied that the Constitution did not talk about civilians but citizens of the country adding that the members of the armed forces were just as much citizens as any other citizens.

“But the main question is as to how the people of the armed forces could be deprived of the fundamental rights,” Justice Mandokhel said, adding that the Army Act was introduced to maintain military discipline, not to curtail the civilian rights. Khwaja Haris, however, contended that the Army Act could not be challenged on the basis of basic constitutional rights. Justice Mandokhel again asked the counsel whether a citizen loses his fundamental right after becoming a part of army. He further questioned the defense ministry counsel as to what will happen if a citizen wanted to go near an army checkpoint even if he was not allowed to go there. Justice Musarrat Hilali observed that this was the pertinent question which must be addressed.

Justice Muhammad Ali Mazhar remarked that the answer to this question was very simple saying if that person committed an offence listed in the Army Act, he could face a military trial but standing simply near a military checkpoint did not warrant anything. Meanwhile, Hafeez Ullah Niazi, father of the convict Hasaam Khan Niazi, came to the rostrum and informed the bench about the treatment being meted out to his son. Hasaam has been transferred to jail in Lahore after being sentenced to 10-year rigorous imprisonment. He complained that his son was not being treated as per the jail manual saying 22 convicts were in the Lahore Jails high-security zone under similar conditions.

He further informed the bench that reasons for the sentences granted to the accused persons were not given. Justice Musarrat Hilali observed that the apex court had instructed the authorities concerned to ensure compliance with the jail manual.

Meanwhile, the bench sough a comprehensive report from the advocate general Punjab on the treatment being meted out to the accused persons in jail, transferred from military courts and adjourned the hearing for today (Wednesday).