ISLAMABAD: Justice Aminuddin Khan, highlighting the principle that misapplication of legal provisions does not render them unconstitutional, said that a law cannot be void on the basis of its misuse.
Heading a seven-member Constitutional Bench of the Supreme Court, that heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts, he remarked that blasphemy law had been misused; therefore, to prevent its wrong use the investigation of it is assigned to superintendent of police level officer.
Justice Amin questioned if a civilian and a member of armed forces commit the same offence then whether their trial would be held in various forums.
Salman Akram Raja, appearing on behalf of one of the accused convicted by military court, contended that a person who joins the army surrenders his fundamental rights; therefore, he cannot be arrayed with the civilians.
Justice Amin said the 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.
During the hearing, Justice Jamal Mandokhail 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.
Raja argued 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.
Justice Mandokhail 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 by military courts only in cases of direct nexus between a civilian military and personnel or national defence matters.
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 Mandokhail 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.
Raja countered by pointing out that in countries such as 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 Mandokhail 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 said that the primary focus of all parties should be on upholding constitutional principles and ensuring that justice is served fairly.
The bench adjourned the hearing until Monday (February 9).
Copyright Business Recorder, 2025
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