The Supreme Court on Tuesday resumed hearing intra-court appeals concerning the trial of civilians in military courts where Justice Jamal Khan Mandokhel emphasised that the primary duty of the armed forces is to defend the country.
The remarks were made during proceedings before a seven-member constitutional bench, which also includes Justices Aminuddin Khan, Muhammad Ali Mazhar, Musarrat Hilali, Hasan Azhar Rizvi, Shahid Waheed, and Irfan Saadat Khan.
The court is reviewing the legality of military trials for civilians, particularly in relation to the May 9 incidents.
Defense Ministry lawyer Khawaja Haris, presenting rebuttal arguments, defended the military courts, stating that they are constitutional and independent of high court oversight. "How will the armed forces fulfil their responsibility of defense when their legs are being pulled from behind?" Haris asked, contending that criticism of the military judiciary impedes national security.
However, the bench raised questions on the scope and limits of military trials, especially regarding fundamental rights. Justice Mandokhel stated, "Any violation of law is against the interest of the state," and further questioned the application of military law to preemptive actions. “How will the law be applied to a conspiracy that has not yet taken place?” he asked, referring to the preventive measures provided under the Army Act.
Justice Muhammad Ali Mazhar, citing provisions from the Criminal Code, suggested that there should be clear legal distinctions for different types of violations, such as murder and attempted murder. Justice Musarrat Hilali raised concerns about the potential loss of fundamental rights for citizens through general legislation, questioning whether such drastic measures should be applied without amending the constitution.
Further, Justice Hilali pointed to the case of India, where military trials of civilians are subject to judicial oversight, adding that a similar approach should be considered in Pakistan. Justice Mazhar noted that the Attorney General's submissions, already part of the court’s proceedings, should be revisited once the defense counsel finishes presenting their arguments.
Case expected to conclude in two sessions
The case will continue tomorrow with Khawaja Haris set to continue his arguments.
The bench has stated that it intends to wrap up the hearings in the next two sessions, as the court aims to deliver its verdict on this critical matter, which carries significant implications for civilian-military relations and constitutional rights.
