Feb 3, 2025
Staff Report
ISLAMABAD
Supreme Court Justice Jamal Khan Mandokhel on Monday ignited debate by questioning the rationale behind the inconsistent application of justice in terrorism cases. He pointedly asked why attacks on Parliament and the Supreme Court were being tried in civilian courts, while similar attacks on the GHQ were being handled by military courts. This disparity, he argued, raised serious questions about the fairness and equality of justice.
Mandokhel raised this question during the hearing by a seven-member constitutional bench, led by Justice Aminuddin Khan, on appeals against the trial of civilians in military courts.
This was seconded by Khawaja Ahmed Hussain, the lawyer representing former chief justice (retd) Jawad S. Khawaja, who argued that civilians cannot be court-martialed.
“The procedure followed in special courts is in direct violation of the principles of a fair trial,” he said. He further emphasized that all five judges on the bench had expressed concerns regarding the transparency of trial procedures in these courts.
During the proceedings, Justice Hassan Azhar Rizvi raised another question:
“Is there no difference between a bomber and an ordinary civilian?” he questioned.
In response, Khawaja Ahmed Hussain clarified, “I am not defending terrorists or accused individuals. If civilians could be court-martialed, the 21st Amendment would have been unnecessary. If court-martial is permissible, then the court would have to acknowledge that the 21st Amendment was made without justification. The amendment also altered Article 175.”
Hussain continued, “In special courts, there is no concept of bail until a verdict is reached. Appeals do not go to an independent forum, and individuals are denied the right to choose their lawyer.”
Justice Jamal Khan Mandokhel, during the hearing, pointed out, “The key question before us is who does the Army Act apply to. If, God forbid, a terrorist attack were to occur on the Parliament, the Supreme Court, and the GHQ, would the trial for the attack on the Parliament and Supreme Court take place in an Anti-Terrorism Court, while the attack on the GHQ be tried in a military court? All three attacks are essentially the same. Why, then, should there be a distinction in how they are handled?”
Advocate Hussain responded, “The court should not set a precedent that allows civilians to be tried in special courts.”
He argued further, “There are two key issues at hand: fundamental rights and national security. If the court upholds the protection of fundamental rights, no accused or terrorist will benefit from the ruling. The anti-terrorism law already provides adequate provisions, including witness protection. No case should allow civilians to be subjected to a system that undermines fair trial principles.”
In a related development, the constitutional bench lifted the Rs 20,000 fine previously imposed on former Chief Justice Jawad S. Khawaja. The fine was revoked after Khawaja withdrew his review petition.
Following this, lawyer Salman Akram Raja presented his arguments. He asserted that the military trial of a civilian is viewed globally as a breach of constitutional principles. He rejected Khawaja Haris’s interpretation of the FB Ali case, arguing that it did not state that fundamental constitutional rights are inapplicable in the context of the Army Act.
Referring to India’s legal approach, Salman Akram Raja explained that if both soldiers and civilians are involved in an incident there, the trial is conducted in a civilian court. He also questioned the rationale behind the military trial of 103 individuals, pointing out that the reasons for their selection had not been disclosed.
Justice Aminuddin Khan responded, “The points you are raising are not the focus of this case.”
Salman Akram Raja reiterated that the commanding officer should have exercised judicial discretion before referring civilians for military trial. He also mentioned that he had 18 cases pending against him and stated that if the Supreme Court grants observation, he would present arguments the following day. However, Justice Aminuddin Khan clarified that the court could not issue such an observation, and Justice Muhammad Ali Mazhar advised Raja to file an adjournment application.
The court adjourned the hearing until 9:30 a.m. the next day, when Salman Akram Raja will continue his arguments.
It’s important to recall that a five-member bench of the Supreme Court previously ruled that the court-martial of civilians in military courts is unconstitutional. This current hearing is focused on the government’s appeal against that decision.