Complainant institutions can't conduct trials, SC judge on military courts

Justice Mandokhail questions how an institution that has acted as a complainant can also preside over the trial.

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The Supreme Court of Pakistan has resumed hearings on a high-profile case that has challenged the legality of trying civilians in military courts, with judges raising serious concerns over due process and judicial independence.

A seven-member constitutional bench, led by Justice Aminuddin Khan, was hearing petitions against the military trials of civilians arrested after violent protests.

Justices Jamal Khan Mandokhail, Musarrat Hilali, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Naeem Akhtar Afghan, and Shahid Bilal were also part of the bench.

Justice Mandokhail questioned how an institution that has acted as a complainant can also preside over the trial. “How can an institution that has itself been the complainant also hear the case?” he remarked. “Has the federation not trusted its own civilian judiciary?”

The court focused on whether those tried in military courts have been granted the constitutional right to appeal and fair trial. “We have been asking about the right to appeal because it is a fundamental right,” Justice Mandokhail noted.

Justice Hilali pointed out how criticism intensifies when civilian courts delay proceedings. “If a judge goes on leave, it becomes a national issue that trials are delayed,” she has said, highlighting a perceived double standard.

Attorney General Mansoor Usman Awan appeared before the bench and defended the military court process. He stated that the court-martial system follows a defined legal structure, and any death sentence is not implemented until appeals have been exhausted. “The entire procedure is already on record with the court,” he said.

Justice Mazhar said there should not be any problem in allowing fair trials. “If we provide the right to fair trial, what is the issue?” he asked.

The bench also revisited options previously discussed by a full court after the 18th Constitutional Amendment.

Justice Mandokhail asked the attorney general to explain which of those three options the government has pursued.

The attorney general said he will respond after petitioner Khawaja Haris concludes his arguments. The court adjourned the hearing until Thursday.