Military courts' place in judiciary in focus

Justice Mazhar points to lack of ruling defining them

ISLAMABAD:

Justice Muhammad Ali Mazhar of the Supreme Court's Constitutional Bench on Wednesday observed that military courts were not part of the judiciary, adding that there was no judicial ruling that defined military courts as part of the judiciary.

"First, let the military court be recognised as part of the judiciary, then talk about separating it from the judiciary," he pointed out.

The remarks were made as a seven-judge bench, led by Justice Aminuddin Khan, heard intra-court appeals challenging the Oct 23, 2023, ruling by a five-judge bench that nullified the military court trials of civilians involved in the May 9 violence.

During the proceedings, Advocate Abid Zuberi, representing ex-SCBA officials, argued that the attorney general had violated assurances given to the court.

He pointed out that the attorney general's written assurances were referred to in the five-member bench's decision.

During his arguments, Zuberi recalled that former military ruler General Ziaul Haq had ordered a military trial for F.B. Ali in 1978 but later released him. To this, Justice Mandokhail said Gen Zia did what F.B. Ali wanted to do.

Justice Mazhar said that the army act provided a complete procedure for military trials, ensuring fundamental rights. However, he noted that "if the procedure was not followed, then its mere existence is meaningless."

Justice Mazhar further noted that there were two key objections to military trials: their perceived lack of impartiality and the limited legal expertise of those conducting them.

Advocate Zuberi argued that military courts functioned as part of the executive. At this, Justice Mazhar questioned, "What is the role of the army? Where does the executive come into it?" Zuberi responded, "The army's job is to defend the borders."

Justice Mandokhail added that the army's role was national defence.

Justice Mazhar then questioned whether Zuberi considered military courts to be part of the judiciary. "If you recognise them as the judiciary, the consequences will be different. If a military court is judicial, then it is part of the judiciary. Justice Munib did not classify military courts as the judiciary."

Zuberi reiterated that Supreme Court rulings have established that civilians cannot be court-martialled for civil offences. "Military courts are not part of the judicial system under the Constitution. They can only try civilians who are part of the military. Under Articles 10-A and 4, civilians cannot be court-martialled." He further argued that under Section 2-D, Article 8(3-A) does not apply to the accused.

However, Justice Mazhar pointed out that Article 8(3-A) includes the term "other persons," adding that no ruling has provided clarity on military courts so far.

Zuberi insisted that "under Article 10-A, military trials cannot be conducted." Justice Mazhar then questioned, "Where does the nexus provision fit in?"

Justice Mandokhail noted that Section 2-D does not explicitly mention military courts but only states that a trial will be held for the crime. "It does not specify which forum will conduct the trial," he said.

Zuberi informed the court that amendments had been made to include military trials for attacks on military installations. Justice Hasan Rizvi responded, "These attacks are still happening—there was an attack in Bannu Cantt just yesterday."