Law cannot be nullified down over misuse: Head of apex court CB

The head of the Supreme Court of Pakistan's Constitutional Bench has asserted that laws cannot be nullified solely due to their misuse, highlighting the principle that misapplication of legal provisions does not render them unconstitutional.

The remarks came during an intra-court appeal concerning the trial of civilians by military courts.

The case, heard by a seven-member constitutional bench led by Chief Justice Amin-ud-Din Khan, revolves around the controversial issue of civilians being tried by military tribunals for alleged crimes.

During the hearing, Justice Jamal Mandokhel raised critical questions about the jurisdiction of military courts, querying whether civilians, who are not part of the armed forces, can be subjected to military trials simply because the nature of their alleged crimes is deemed severe.

He asked, "Can a person who is not part of the military be tried by a military court simply based on the crime they are accused of?"

Senior lawyer Salman Akram Raja, representing the petitioners, argued vehemently against the military trial of civilians.

Raja stressed the importance of safeguarding fundamental rights, asserting that military courts should not have the authority to try civilians unless their actions directly threaten national security or the armed forces.

He cited the landmark FB Ali case from 1962, where the Supreme Court ruled that civilians could only be tried in military courts if their alleged activities were directly linked to matters of national defence.

In response, Justice Mandokhel questioned the scope of the powers granted to military courts under the Pakistan Army Act.

He asked Raja to clarify whether the law allows military tribunals to try civilians for acts unrelated to military affairs or national security, with the focus being on the severity of the crime rather than the status of the accused as a civilian or military member.

Raja maintained that the right to a fair trial is a cornerstone of the Constitution and that military tribunals should not be used as a substitute for civilian courts, particularly when the case does not involve the armed forces.

He argued that past judgments have emphasised the need for civilian trials, with military courts reserved for cases involving direct military personnel or national defence matters.

Justice Amin-ud-Din Khan added that while the misuse of a law is indeed unfortunate, it should not serve as a basis for declaring that law unconstitutional.

He reminded the counsel that laws are designed to serve the broader public interest, and any instances of misuse must be addressed through corrective measures, rather than through blanket annulments.

He further elaborated that laws should be evaluated on their overall purpose and not solely on isolated instances of their abuse.

The hearing continued with discussions on whether military courts have the jurisdiction to try civilians for non-military crimes and whether such trials infringe upon constitutional rights.

While the case remains ongoing, the bench expressed that challenging the legality of military trials based on the potential for misuse would not be sufficient without demonstrating that the law violates constitutional guarantees of fundamental rights.

Justice Mandokhel also pointed out that, in previous cases, the courts had ruled in favour of protecting fundamental rights, including the right to a fair and impartial trial.

He cautioned that any expansion of military courts' jurisdiction should not come at the cost of civilian rights.

The court also delved into the intricacies of military tribunal trials in comparison with civilian trials. Justice Mohammad Ali Mazhar raised concerns about whether the Army Act applies to civilians involved in serious crimes such as terrorism, while Justice Hassan Azhar Rizvi discussed the potential role of foreign agencies in instigating civilians to act against the state.

Salman Akram Raja countered by pointing out that in countries like India, military trial procedures offer a fairer system, including the provision for appeals in a civilian tribunal.

He argued that military trials in Pakistan, where appeals are heard by the Army Chief, lack transparency and fairness, leaving civilians at a distinct disadvantage.

Justice Mandokhel noted that the trial of civilians by military courts raises profound questions about the relationship between the civilian and military legal systems in Pakistan.

He questioned whether such trials would be justified in cases where the accused is not involved in any military-related offence.

Justice Amin-ud-Din Khan concluded by reminding all parties involved that the primary focus should be on upholding constitutional principles and ensuring that justice is served fairly.

He noted that while misuse of legal provisions is a valid concern, it should not lead to the dismantling of laws that serve a greater purpose, especially when they align with national security concerns.

The bench adjourned the hearing until Monday, February 9, 2025, when Salman Akram Raja will continue his arguments.