A seven-member bench of the Supreme Court, led by Justice Aminuddin Khan, resumed hearings on Tuesday regarding the legality of trying civilians in military courts. The proceedings focused on parliamentary oversight of the Army Act, fundamental rights, and the jurisdiction of military courts.
Judicial Scrutiny on Army Act
During the hearing, Justice Aminuddin Khan questioned whether any National Assembly member had ever raised objections to the Army Act or attempted to introduce a private bill against it. “Has any member of the assembly ever introduced a private bill against the Army Act?” he asked.
PTI founder’s lawyer, Uzair Bhandari, contended that military courts lack jurisdiction over civilians, arguing that only general courts should conduct criminal trials. He further stated that fundamental rights were not fully available under the 1962 Constitution, which was enacted during Ayub Khan’s regime.
Defining the Army Act’s Scope
Justice Jamal Khan Mandokhel inquired about the legal foundation for subjecting civilians to military trials. “How has the connection of civilians been established under Section 21D?” he questioned.
Justice Hassan Azhar Rizvi referenced past cases, such as the Muharram Ali and Rawalpindi Bar cases, where terrorism-related offenses were linked to military courts. “If military installations were attacked, would their security be solely under the military’s control?” he asked.
Bhandari responded by citing media reports and available footage, stating that 103 civilians are currently facing military trials.
Fair Trial Concerns
Following a recess, Bhandari resumed arguments, asserting that military trials depend on the accused’s status rather than the crime’s nature. He highlighted that, per Article 8(3) of the Constitution, armed forces personnel do not enjoy the same fundamental rights as civilians.
However, Justice Musarrat Hilali pointed out an amendment to the Army Act that allows civilian trials if a military link is established. “The trial is conducted based on the crime, not just the accused’s status,” she remarked.
Justice Muhammad Ali Mazhar questioned whether the military could exercise judicial authority over civilians. “You argue that the army cannot wield judicial authority. If so, it cannot do so for anyone,” he noted.
International Comparisons
The discussion extended to international precedents. Justice Aminuddin Khan cited India’s legal system, where an independent tribunal hears appeals against military trials. Justice Muhammad Ali Mazhar referenced the case of Indian national Kulbhushan Jadhav, where Pakistan introduced special legislation allowing an appeal following the International Court of Justice’s ruling.
Justice Naeem Akhtar Afghan recalled the extension of a former army chief’s tenure, highlighting that no prior law permitted such an extension. “It was only after Supreme Court instructions that Parliament legislated on the matter,” he stated.
Justice Aminuddin Khan remarked on how swiftly legislation was passed at the time. “Everyone was sitting together for the notification, and one notification followed another. This was our situation,” he observed.
Bhandari concluded by citing past legal precedents, arguing that military trials remain flawed. “Fair trial is still a distant reality—military trials are merely a formality on paper,” he asserted.
The hearing was adjourned and will resume on Tuesday.
