'Executive can't perform judiciary's role'

Justice Mandokhail says Pakistan Army Act of 1952 applies only to armed forces personnel

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ISLAMABAD:

Justice Jamal Khan Mandokhail, a member of the Constitutional Bench (CB) of the Supreme Court, has said that under the Constitution the executive branch of the state cannot perform the function of judiciary and that the Pakistan Army Act, 1952 applies only to armed forces personnel.

Justice Mandokhail made this remark during the hearing of the intra-court appeals filed against the SC's October 2023 order declaring trial of May 9, 2023 rioters in military courts illegal.

When the seven-member CB resumed hearing the appeals on Tuesday, the head of the bench, Justice Aminuddin Khan, announced that the court would only hear the military courts case on Tuesday and Wednesday (today) and ordered the registrar office to delist all the other cases.

During the hearing, the counsel for the Ministry of Defense's counsel, Khawaja Haris, argued that the SC previously ruled that civilians under the military's jurisdiction can be court-martialed.

Justice Mandokhail asked him as to who was the affected party or appellant in the May 9 cases. Haris responded that the Ministry of Defense was the appellant.

Justice Mandokhail questioned whether an executive body like the Ministry of Defense could act as both judge and decision-maker in a case involving itself, adding that there is a clear separation of powers outlined in the Constitution.

"The Constitution prohibits the executive from performing judicial functions, which is a fundamental constitutional issue in cases involving military courts," he noted

Haris said the executive could make decisions if no other forum was available. Justice Mandokhail noted that anti-terrorism courts (ATC) already exist as a legal forum. He questioned how the executive could assume a judicial role in their presence.

He said the Pakistan Army Act, 1952 is explicitly limited to members of the armed forces. He also questioned whether Article 8(3) of the Constitution, which pertains to discipline within the military, could include criminal matters. He said the Constitution refers to "citizens of Pakistan," not just civilians.

Haris argued that members of the armed forces are as much citizens of Pakistan as others, adding that Article 175 does not apply to trials conducted in military courts. Justice Mandokhail stated that the Pakistan Army Act, 1952 was enacted to ensure discipline within the armed forces.

Haris argued that civilians joining the armed forces cannot challenge matters in civil courts under fundamental rights. He added that Pakistan has experienced martial law for 14 years and that the Army Act applies to cases where civilians interfere with the duties of the armed forces.

Justice Mandokhail questioned whether a civilian attempting to cross a military checkpoint would also constitute interference under this broad interpretation, suggesting that such a definition could lead to overreach.

Justice Muhammad Ali Mazhar observed that the case has two aspects: the SC in October 2023 annulled certain provisions of the Pakistan Army Act, 1952 while also declaring the trial of civilians in military courts illegal.

Justice Musarrat Hilali pointed out the significance of Justice Mandokhail's question regarding where disputes involving civilians at military checkpoints should be tried. Justice Mazhar stated that the army act specifies the crimes it covers.

Justice Hilali raised concerns about extending powers to try civilians. She said there is a need to determine whether such trials are constitutional.

At the end of the session, Hafeezullah Niazi, the father of Imran Khan's nephew Hassaan Niazi, addressed the court, expressing concerns over the conditions of 22 prisoners convicted by military courts in Lahore last week.

He said these prisoners, including his son Hassan Niazi, were reportedly being held in a high-security zone without rights under the jail manual. Justice Mazhar said these May 9 rioters are now convicted prisoners and asked why they are being denied their rights under the jail manual.

The court directed the Punjab government to respond to these allegations.

Hafeezullah Niazi told the CB that while sentences of 2 to 10 years were handed down, no detailed reasons for the judgments were provided.

Justice Hilali asked whether reasons for the judgments were indeed withheld. Justice Mazhar advised Niazi to present his arguments at the appropriate time. The hearing is set to continue today (Wednesday).