Supreme Court Addresses Civilian Trials in Military Courts

ISLAMABAD: During Friday’s Supreme Court session regarding appeals against civilian trials in military courts, Justice Musarrat Hilali stated that “military law is at odds with the Constitution.”

Khawaja Haris, representing the Defence Ministry, concluded his arguments during today’s session. The Attorney General is scheduled to present counter-arguments at the next hearing on April 28.

During the proceedings, Justice Hasan Azhar Rizvi inquired about the standards used to determine which cases are tried in military courts, questioning the rationale behind case selection.

In response, Haris asserted that the selection process was not arbitrary, stating that the severity of the crime dictates the venue. He clarified that the nature of the offence determines whether a case is directed to anti-terrorism courts or military tribunals.

Justice Hilali questioned whether civilians should be tried in military courts at all, suggesting their jurisdiction should be limited to disciplining members of the armed forces. “Where it is evident that the [trial] is exclusively for members, what is the procedure?” she asked.

Justice Rizvi further questioned the applicability of military law to civilians who attack army facilities. Justice Naeem Akhtar Afghan added that the Army Act pertains to armed forces personnel, and civilian inclusion would require express specification.

Justice Afghan also pointed out that while the 1973 Constitution retained many features of previous laws, some elements were integrated during martial law periods. He noted that amendments were later enacted to revert the Constitution to its original state after martial law, but the Army Act provisions remained unchanged.

Haris maintained that court martial is constitutionally recognised and implemented both during war and peacetime.

Justice Jamal Mandokhail cautioned Haris against overreaching, humorously advising him not to risk facing more severe consequences than intended.

Justice Hilali highlighted that Section 2(1)(d)(1) was added to the Army Act in 1967 under the 1962 Constitution, while Justice Mandokhail referenced Article 202, which delineates high courts and subordinate judiciary. Justice Hilali then reiterated that military law conflicts with the Constitution, emphasizing the supremacy of the 1973 Constitution.

Haris contended that court martial proceedings ensure fair trials, with presiding officers possessing legal expertise.

Justice Rizvi remarked on the security failures evident in the attacks on military sites, inquiring whether any military officers had faced action or if internal accountability measures were taken following the events of May 9.

Additional Attorney General Amir Rehman stated that the Attorney General would address this specific query at the upcoming hearing.