Trial of civilians under the Army Act: CB’s Mandokhail raises concerns over legitimacy

ISLAMABAD: Justice Jamal Khan Mandokhail questioned how a civilian, not in armed forces, can be tried by military courts, and raised concerns over the legitimacy of trying civilians under the Army Act.

A seven-judge constitutional bench of the Supreme Court, headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan, Justice Mussarat Hilali, and Justice Shahid Bilal Hassan, on Thursday, heard the intra-court appeals (ICAs) against the SC’s judgment on military courts.

Justice Hilali directed the Ministry of Defence’s counsel to file the copy of rules under that the trial is conducted by the military courts. She also asked for the details of FIRs against 9th and 10th May protesters.

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During the proceeding, Justice Mandokhail observed that the entire case related to military courts revolves around Article 8. He questioned “how a person not in the armed forces can be tried under Army Act?”

Khawaja Haris, representing the Ministry of Defence, responded that if the law permits, then discipline will apply. He argued that the Army Act is applicable to civilians in certain circumstances and that the Supreme Court does not have the authority to nullify the provisions of the Army Act.

Haris argued that the military courts’ case had two parts: one, declaring sections of the Army Act null and void, and the other, regarding the custody of the accused in military courts.

Justice Mazhar questioned; “Whether a five-member bench had declared the provisions of Army Act contrary to Article 8 of the constitution? What justification was provided in the judgment that the sections of Army Act violate Article 8?” He stated that the ICAs against apex court’s judgment on military courts are being heard by a constitutional bench and it can review constitutional points in these appeals.

Justice Mandokhail stated that a person in the Army will be subject to military discipline. Similarly, a person in the Agriculture Department will follow its discipline, and a person in some other department then he would follow law of that department. He said if a person is not in any department, how can military discipline be applied to him? Is it not a violation of Article 8 to subject an unrelated person to military discipline and strip them of their fundamental rights?

Haris argued that in specific situations, civilians can also be subjected to the Army Act, and fair trial provisions (Article 10A) exist even in military trials. Justice Mazhar noted that in FB Ali and Sheikh Riaz Ali, the Court held the same.

He said that four judges of the five-judge bench declared the Army Act provisions, null and void. Haris contended that the court did not have the authority to the provision of Army Act, void.

Justice Mandokhail further noted that if the President’s House is attacked, the trial would take place in an anti-terrorism court. He asked how a person be tried in military courts if they attack a military installation. Haris, defending the government’s position, emphasized that the decision to try civilians under military courts was made through legislation.

Justice Hilali questioned whether the fundamental rights of the accused are forfeited when a case is tried under the Army Act, asking if a person who falls under the Army Act is treated as though they “go to another world”.

She inquired whether military court trials allow legal counsel for the accused and whether all relevant materials are provided. Haris responded that in military courts, the accused is provided with a lawyer and access to all relevant materials.

Justice Mandokhail questioned if a man murders a soldier then where would the trial take place. Justice Hilali remarked that killing of a soldier on personal enmity and attacking soldiers in Balochistan are two different scenarios. Justice Mandokhail said that a person not subject to the Army Act could deprive him of his fundamental rights.

The case is adjourned until today (Friday).

The bench dismissed the petitions against the Supreme Court (Practice and Procedure) Ordinance, 2024.

Justice Amin said the Ordinance is no more in the field. PTI Chairman Barrister Gohar Ali Khan, Afrasiab Khattak, Ihteshamul Haq, and Akmal Bari, had filed petitions against the Ordinance.

Copyright Business Recorder, 2024