Apex court's CB seeks clarity on civilians being tried under Army Act

Defence ministry defends military courts as constitutional challenge grows.

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The constitutional bench of the Supreme Court of Pakistan on Tuesday scrutinised the legality of military courts trying civilians, with judges raising critical constitutional questions about the scope of the Army Act.

The defence ministry’s lawyer, Khawaja Haris, argued that civilians could face trial under the Army Act if they committed crimes listed in its provisions.

Justice Jamal Mandokhail, however, questioned how an executive body like the military could serve as judge in civilian matters, emphasising that the Constitution prohibits such arrangements.

“The Army Act was designed to maintain discipline within the armed forces. Extending it to civilians requires clear justification,” Justice Mandokhail remarked.

Justice Muhammad Ali Mazhar clarified that simply standing near a military checkpoint does not warrant a trial under the Army Act. “Only if a civilian commits an offence defined under the act can they face trial,” he said.

The bench also debated whether disobeying military orders, such as approaching a restricted checkpoint, could be considered interference with the armed forces' duties. The defence ministry maintained that the act includes provisions for specific situations involving civilians.

Justice Musarrat Hilali highlighted the broader implications of expanding military courts’ jurisdiction, stating, “The key question is whether civilians can be tried at all.”

Last month, Supreme Court judge Jamal Khan Mandokhail raised questions about the trial of civilians in military courts, noting that a person not bound by military discipline can also not be tried by a military court formed under the Pakistan Army Act, 1952.

"A person who is not subject to the [Pakistan] Army Act cannot be deprived of his fundamental rights. Article 8 of the Constitution mentions army laws in the context of their discipline," he observed.

Justice Mandokhail was part of a seven-member Constitutional Bench (CB) of the Supreme Court hearing the government's appeal against the October 2023 order of an apex court bench in a military trial case.

On October 23, 2023, a five-member bench of the Supreme Court unanimously declared the trial of civilians in military courts null and void and ordered that the 103 accused in cases related to the violence on May 9 and 10, 2023 be tried under the ordinary criminal laws.

The court, by a 4-1 majority, also declared certain clauses of the Pakistan Army Act, 1952, ultra vires the Constitution.

The government later filed an intra-court appeal against the verdict, and a six-member SC bench, on December 13, 2023, by a vote of 5 to 1, suspended the October 23 order.