February 25, 2025
By Rana Malhi
ISLAMABAD
The intrac court appeal (ICA) against the trial of civilians in military courts continued on Tuesday, February 25, heard by the seven-member constitutional bench of the Supreme Court. The bench was led by Justice Aminuddin Khan and included Justices Musarrat Hilali, Jamal Khan Mandokhail, Hasan Azhar Rizvi, Muhammad Ali Mazhar, Munib Akhtar, and Naeem Akhtar Afghan.
Tuesday’s hearing
Advocate Uzair Bhandari, representing Pakistan Tehreek-e-Insaf (PTI) chairman Imran Khan, began his arguments by stating that under the 1962 Constitution, Ayub Khan’s rule was in place, and people did not have fundamental rights.
He said that criminal cases against civilians should be tried in regular courts, however the Ordinance includes several provisions related to the armed forces. He raised the key question of whether the Army Act could be applied to civilian cases and, if so, under what law.
Justice Jamal Mandokhail inquired how civilians were linked to the 2D provision. The lawyer replied that nothing was mentioned about 2(1)(D) in the FB Ali case. He further explained that amendments had been made to allow military court trials in the Darvesh Adamjee and District Bar cases.
Justice Hasan Azhar Rizvi remarked that anti-terrorism laws were involved in the Muharram Ali and Rawalpindi Bar cases, and if military installations were attacked, their security would be under army personnel. He added that if the military was involved, the trial would (automatically) be conducted in military courts.
“The lawyer informed the court that at present there were 103 individuals who were being tried in military courts.”
Bhandari argued that military court trials were based on the status of the accused rather than the nature of the crime. He questioned if the accused was linked to the armed forces or whether he was a civilian, and cited a US court ruling where the trial decision was based on the status of the accused. Justice Musarrat Hilali observed that according to amendments in the Army Act, civilians could also be tried if their involvement in a conspiracy was proven. However, the lawyer contended that proving a conspiracy did not mean that the status of the accused is ignored.
Justice Muhammad Ali Mazhar, asked the lawyer: “According to your argument, the military cannot exercise judicial powers. But now you are saying the military has this authority for its personnel but not for civilians. If the military cannot exercise judicial powers, then it should not be able to do so for anyone.”
Meanwhile, referring to Article 8(3) of the Constitution, Justice Jamal Mandokhail stated that armed forces personnel do not have fundamental rights, which means they would not be entitled to Article 10A either, implying they could be tried anywhere.
During the hearing, the lawyer also mentioned former Army Chief General Qamar Javed Bajwa’s service extension. Justice Naeem Akhtar Afghan pointed out that at the time, there was no law allowing an extension for the Army Chief, and legislation was later enacted based on Supreme Court directives. Lawyer Salman Akram Raja referenced India’s judicial system. Justice Aminuddin Khan asked whether appeals against military trials in India were allowed by Parliament or directed by the courts. Bhandari admitted he was unaware.
Justice Muhammad Ali Mazhar cited the Kulbhushan Jadhav case, noting that a special law was enacted to grant him the right to appeal, in compliance with an International Court of Justice ruling.
Justice Jamal Mandokhail mentioned a past decision regarding lower judiciary judges, which led to the formation of a committee in the High Court to oversee their testing and interviews.
Bhandari referenced the FB Ali case, stating that Aitzaz Ahsan had explained how trials were conducted in the past. He claimed that even today, PTI founder Imran Khan was undergoing a jail trial without fair trial rights or access to documents.
Justice Aminuddin Khan questioned, “If no documents are allowed, how are letters being sent out?” to which Justice Musarrat Hilali replied saying, that she agreed and that there was an ongoing controversy about letters ‘these days’.
Justice Jamal Mandokhail instructed the lawyer to focus on fundamental rights in his arguments.
Death Sentence
Bhandari argued that court-martial trials could result in death sentences, yet military judges had no fixed tenure, training, or legal expertise. He added that there was no right to appeal against such sentences, except for a mercy plea to the Army Chief. Though a writ petition could be filed in the High Court, its scope was limited.
As Uzair Bhandari completed his arguments, the court has adjourned the hearing until Tuesday February 26, when lawyer Faisal Siddiqui will be presenting his arguments.