Martial law is an extra-constitutional measure: SC judge

ISLAMABAD: Highlighting the judiciary’s emphasis on adhering to constitutional principles and rejecting any extra-constitutional measures, Justice Muhammad Ali Mazhar of the Supreme Court on Thursday remarked that the Constitution makes no mention of martial law, adding that martial law is an extra-constitutional measure.

A seven-member Constitutional Bench of the apex court, headed by Justice Amin-ud-Din Khan, heard the ICAs filed by the federal government and the Ministry of Defence challenging the Supreme Court ruling. The bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

At the outset of the hearing, Hamid Khan, the senior lawyer representing the Lahore High Court Bar Association, provided a brief background of the Army Act and the evolution of various constitutions.

The Supreme Court Bar Association (SCBA), through its President Mian Muhammad Rauf Atta, submitted a one-page written statement. The SCBA stated that, in principle, civilians should not be tried in military courts. However, it acknowledged that the provisions of the Pakistan Army Act, which have been upheld by courts as constitutional, cannot now be deemed unconstitutional or illegal.

The SCBA further emphasized that it is the Supreme Court’s role to interpret applicable laws and determine their constitutionality and applicability in specific cases.

During the hearing, Justice Rizvi remarked that Article 270-A of the Constitution provides protection to martial law actions. Justice Mandokhail added that the judiciary has historically endorsed actions taken during martial law.

Hamid Khan, in his arguments, referenced to the arrest of Pakistan Tehreek-e-Insaf (PTI) founder chairman Imran Khan from the premises of the Islamabad High Court. Justice Mandokhail interjected, stating that the court would not revisit past events and that the central issue was whether civilians could be tried in military courts.

Hamid Khan elaborated on the history of the Army Act, explaining that it was enacted in 1952 and first amended in 1967. He cited the 1951 Rawalpindi Conspiracy Case, involving a plot to establish a communist system in Pakistan, where civilians and military officials, including General Akbar Khan, were tried under a special tribunal rather than a military court.

Justice Mandokhail inquired whether the Army Act existed in 1951, to which Hamid Khan responded that the 1911 Military Act was in effect at the time.

Hamid Khan further explained that the first military court in Pakistan was established in 1953 during the Ahmadiyya riots in Lahore. He noted that those involved, including prominent figures like Maulana Abdul Sattar Niazi and Maulana Maududi, were tried in military courts.

Justice Rizvi remarked that those leaders were later pardoned.

Justice Mandokhail questioned, “What is the connection between all these matters and military trials? When was martial law imposed in the country, and what is its link to military courts? The Constitution does not permit martial law.”

In response, Advocate Hamid Khan stated, “Some way or another, martial law is always found. The Supreme Court’s decisions have closed the path to martial law.”

Justice Mazhar remarked, “The Constitution makes no mention of martial law. Martial law is an extra-constitutional measure.”

Hamid Khan submitted that military courts were established for two years through the 21st Amendment, but the Liaquat Hussain case abolished the concept of such courts.

Justice Mazhar pointed out that under the 21st Amendment, military court decisions were subject to judicial review by higher courts. Hamid Khan argued that if the amendment had not included a two-year limit, it would have been struck down. “These courts were established under the justification of wartime conditions,” he submitted.

He contended that the Supreme Court’s 2009 judgement had effectively closed the door to martial law, and its 2015 ruling invalidated military courts. He noted that he was the lead counsel in both cases.

Justice Mandokhail remarked that military courts already existed for court-martial proceedings, questioning how Hamid Khan would respond if a constitutional amendment was introduced to allow military courts. Hamid Khan maintained that military courts are incompatible with democracy and deprive the accused of fundamental rights.

Hamid Khan maintained that they had not accepted even the temporary military courts set up for two years, arguing that military courts are not judicial bodies and that they deprive the accused of fundamental rights.

“There is no concept of military courts in democracy and there is no place for it in the Constitution as well,” he contended while reading out some of major points from his formulations. He contended that the functions of military courts are not judicial but executive in nature. He further stated that even Article 245 does not authorise the establishment of military courts or the trial of civilians under the pretext of aiding civil power. He argued that trying civilians in military courts undermines their fundamental rights.

He also referenced to Peshawar High Court former chief justice Seth Waqar, who had ruled against military court verdicts, describing him as a distinguished judge.

Hamid Khan highlighted that the 1967 amendment to the Army Act, which allowed civilian trials, was enacted during a state of emergency due to the civil war in East Pakistan. He argued that such justifications became irrelevant after the adoption of the 1973 Constitution.

Justice Amin-ud-Din noted that past laws had been acknowledged in their original form under the Constitution; however, he asked the counsel to keep his arguments focused on the appeal, which challenged two invalidated sections, adding that the court had struck them down under Article 8(5) of the Constitution.

Referring to the May 9 incidents, Hamid Khan contended that none of the cases involved restricted areas. He questioned whether the Corps Commander’s residence in Lahore had ever been officially designated as a restricted area. He pointed out that no prior record existed identifying the residence as “Jinnah House.”

Justice Muhammad Ali Mazhar noted that the additional attorney general had provided a list of 18 to 20 individuals arrested in Lahore. Justice Mandokhail asked Hamid Khan if he was arguing that an area must be formally declared restricted under the Constitution. Hamid Khan responded that Punjab had suffered significant oppression due to the case and that authorities had suddenly begun referring to the location as Jinnah House.

Hamid Khan reiterated that military courts do not have jurisdiction over civilian trials.

The court adjourned the hearing until next Monday at 11:30am, when Hamid Khan would continue his arguments.