January 30, 2025
By Rana Malhi
ISLAMABAD
During the hearing of an intra-court appeal challenging the trial of civilians in military courts, Supreme Court Justice Jamal Mandokhel observed on Wednesday that the use of the term ‘members’ in the Pakistan Army Act clearly excludes civilians from military court jurisdiction.
The case is being presided over by a seven-member constitutional bench led by Justice Aminuddin Khan. During the hearing, Defence Ministry’s counsel Khawaja Haris argued that military courts operate under a recognised legal framework and are essential for ensuring national security and defence. He referenced Article 175 of the Constitution, which mentions courts, and clarified that military courts function under specific laws with limited scope.
Justice Jamal Khan Mandokhel noted that the 21st Constitutional Amendment explicitly stated military courts were established during wartime, and the Constitution had to be amended to allow civilian trials. However, the Defence Ministry’s counsel countered that the amendment was unnecessary, as it merely expanded the Army Act to include additional crimes.
Justice Hassan Azhar Rizvi questioned where the trial of those who attacked the GHQ (General Headquarters) was held. The Defence Ministry’s counsel responded that the case was tried in a military court before the 21st Constitutional Amendment.
Justice Rizvi further inquired about the trial of the accused in the Mehran Air Base attack. The lawyer explained that all terrorists involved in the attack were killed on the spot, so no trial took place.
Justice Muhammad Ali Mazhar asked about the meaning of ‘nexus’. The judge explained that it could refer to involvement in conspiracy, espionage, or any crime directly related to the army. The Defence Ministry’s counsel added that ‘nexus’ means disrupting defence operations.
Justice Musarat Hilali objected to this definition, arguing that the term ‘defence operations’ is too broad and open to interpretation.
Justice Jamal Khan Mandokhel raised another critical point, referencing a case where a person was released by the Supreme Court after 34 years. He emphasised that such delays are unjust. The Defence Ministry’s lawyer responded that while individual rights are important, state security must also be prioritised.
Justice Hassan Azhar Rizvi highlighted that between 2002 and 2015, over 16,000 attacks were carried out on sensitive locations. He questioned whether the intensity of these incidents had diminished.
The Defence Ministry’s counsel reiterated that military courts were established to address such security challenges.
After a break, Sikandar Bashir Mohmand, the lawyer representing the Balochistan government, came to the rostrum. Justice Jamal Mandokhel questioned how a private lawyer could represent the government and whether there was legal justification for this. Mohmand cited past Supreme Court decisions allowing private lawyers to represent the government.
Justice Mandokhel further asked the Balochistan government to clarify on how it was a party to the case and explain its involvement and relevance to the matter being heard in the court.
Khawaja Ahmed Hasaan, the lawyer for former Chief Justice Jawad S. Khawaja, argued that filing a writ in the High Court against military court decisions cannot justify the violation of fundamental rights.
Justice Musarat Hilali questioned whether there should be a distinction between civilian accused and those associated with the armed forces. She noted that the Constitution protects fundamental rights for ordinary citizens, while those in the armed forces are subject to the Army Act.
Hasaan pointed out that Article 8(3) of the Constitution specifically mentions “members of the armed forces,” implying that the law does not apply to civilians. He argued that if civilians were intended to be included, the wording would have been different.
Justice Jamal Mandokhel agreed, stating that the use of the term “members” clearly excludes civilians from military court jurisdiction.
Hasaan further emphasised that the case is not about releasing the accused but about whether civilians can be tried in military courts. He questioned why the government lacks faith in civilian courts and highlighted that civilians have been subjected to court-martial for 54 years, a practice he argued should end.
Justice Musarat Hilali added that soldiers accused of civil crimes retain their rights, while civilians are denied the same protections.
Hasaan also noted that Kulbhushan Jadhav was granted the right to appeal to the High Court through legislation, a right not extended to civilians.
Justice Jamal Mandokhel raised a hypothetical scenario: “What if all crimes were included in the Army Act tomorrow? Would civilian courts become irrelevant?”
Hasaan responded that for a civilian’s trial in a military court to be valid, it must be proven that all fundamental rights are protected—a condition he argued is impossible under the current system. The Defence Ministry’s counsel, Khawaja Haris, concluded his arguments, and the hearing was adjourned until tomorrow (January 31).