February 5, 2025
By Rana Malhi
ISLAMABAD
The Supreme Court’s seven-member constitutional bench, led by Justice Aminuddin Khan, continued its deliberations on the issue of civilian trials in military courts, engaging in a series of sharp exchanges with lawyer Abid Zuberi. The hearing, marked by historical references and constitutional interpretations, underscored the deep divisions surrounding the legality of such trials.
Zuberi, representing petitioner Bushra Qamar (Vice President of the Pakistan Bar Council), commenced his arguments by highlighting the alleged breach of written assurances provided by the Attorney General, a point previously noted in a five-member bench’s decision. He then shifted focus to the case of former military officer FB Ali, a 1965 war hero, whose subsequent military trial under General Zia-ul-Haq sparked a critical exchange.
“FB Ali, a war hero, faced a military trial after retirement,” Zuberi stated, questioning the legitimacy of such proceedings.
“What FB Ali was trying to do, Zia-ul-Haq did himself,” Justice Jamal Khan Mandokhail interjected, highlighting the potential for abuse of power. “The army’s primary role is to defend the country, not to handle judicial matters.”
Justice Muhammad Ali Mazhar, probing the core of the debate, questioned Zuberi’s stance on military courts. “Do you consider military courts part of the judiciary?” he asked. “If so, it would have significant consequences.”
“Military courts are part of the executive,” Zuberi responded.
“Then what is the army’s fundamental function?” Justice Mazhar pressed.
“To defend the borders,” Zuberi replied.
“No, to defend the country,” Justice Mandokhail corrected. “Not to handle judicial affairs.”
No military courts for civilians
The conversation turned to the constitutional basis for civilian trials in military courts. “Article 10A and Article 4 of the Constitution make the court-martial of civilians impossible,” Zuberi asserted. “Military courts are not part of the constitutional judicial system. Only those civilians who are somehow part of the military can be tried there.”
Justice Mazhar countered by pointing to the Army Act’s procedural safeguards.
“The Army Act provides a complete procedure for military trials and protects fundamental rights,” he noted. “However, if these safeguards are not implemented, their existence is meaningless. Two objections arise: lack of impartiality and limited legal experience of military court judges.”
“The term ‘other persons’ in Article 8/3 could allow for military trials,” Justice Mazhar further suggested.
“But Section 2D only mentions the trial of a crime, not the forum,” Justice Mandokhail clarified.
“Until today, no judicial decision has fully clarified the status of military courts,” Justice Mazhar observed. “First, we must establish whether they are part of the judiciary before discussing their separation.”
“The term ‘military court’ is not used in the law; the term ‘court-martial’ is,” Justice Mandokhail pointed out.
Justice Hasan Azhar Rizvi raised concerns about ongoing security threats. “Attacks on military installations continue, as seen in the recent Bannu Cantt incident,” he stated.
Justice Musarrat Hilali echoed these concerns, mentioning the devastating terrorist attack in Bannu. “Fifteen people, including women and children, were killed,” she said.
“If there is solid evidence, anti-terrorism courts can also punish criminals,” Justice Mandokhail reiterated.
“But where are these cases being tried?” questioned Justice Rizvi. “If they were in anti-terrorism courts, there would be reporting.”
As Zuberi concluded his arguments, the court adjourned the hearing until the following day. Advocate Hamid Khan from the Lahore Bar is scheduled to present his arguments, promising further debate on this critical constitutional issue.