SC Considers the Legality of Civilian Trials in Military Courts
The court has adjourned the hearing until tomorrow to further deliberate on the matter.
Islamabad, January 7, 2025 – The Supreme Court of Pakistan has raised critical questions regarding the trial of civilians in military courts, a matter of significant constitutional importance. Justice Jamal Mandokhel, during the hearing of a case involving civilian trials in military courts, remarked, “It is often said that Parliament is supreme, but in my view, the Constitution is supreme.”
A seven-member constitutional bench of the Supreme Court heard the case related to the trial of civilians in military courts. During the proceedings, the Ministry of Defence’s counsel, Khawaja Haris, argued that the judicial decision was based on Articles 8(5) and 8(3) of the Constitution, stating that these sub-articles are distinctly separate and should not be merged.
Justice Mandokhel pointed out that, according to the Constitution, rules can be suspended but not annulled, and rights cannot be suspended under Article 5. Khawaja Haris responded by emphasizing that there are two parts to Article 233, one pertaining to the armed forces and the other to civilians.
Khawaja Haris referenced the case of FB Ali, where it was decided that civilians could be tried in military courts. He argued that the majority decision misinterpreted Articles 8(3) and 8(5).
Justice Mandokhel noted, “We will see whether we agree with your interpretation or not.” Khawaja Haris further argued that the misinterpretation had led to the incorrect assertion that the FB Ali case was different due to his retirement, stating that the case should not be treated differently based on whether the individual was a civilian at the time of trial.
Justice Mandokhel questioned whether civilian trials are permissible under the Army Act, specifically in cases where individuals are not part of the armed forces. He also clarified that the individuals involved in the May 9th incidents were not associated with the military and asked whether civilian trials could still be conducted under military law.
Justice Musarrat Hilali and Justice Mazhar also raised questions regarding the suspension of fundamental rights under the Army Act and asked for international examples of such practices. Khawaja Haris claimed to have examples at hand.
In a thought-provoking remark, Justice Mandokhel emphasized, “Many of our soldiers are martyred. What about those who attack them? Should they also face military trials?” Khawaja Haris replied that the case did not focus on potential future trials but rather on the legality of current actions.
Read More: Supreme Court Hears Case on Civilian Trials in Military Courts
Justice Naeem Akhtar Afghan further inquired about the implications of previous Supreme Court decisions, which had struck down certain provisions of the Army Act. He noted that if these provisions were also struck down in the current case, it would make it impossible for civilians to be tried in special courts.
The court also considered recent amendments to the Official Secrets Act and asked for clarification on their impact on this case. Justice Mandokhel concluded that while Parliament has the authority to create laws defining criminal acts, it is the constitutional responsibility of Parliament to also establish the courts where such trials will take place.
The court has adjourned the hearing until tomorrow to further deliberate on the matter.
