‘Trial of civilians’: Defence counsel says impugned judgement recognises military court

ISLAMABAD: The Ministry of Defence’s counsel said the impugned judgment itself has recognised the military court; therefore, excluded it from the ambit of Article 175 of the Constitution.

Khawaja Haris, representing the Defence Ministry, contended that the separation of courts mentioned in Sharaf Faridi judgment are about the administration, which were performing the judicial functions.

He said under Article 203, each High Court shall supervise and control all courts subordinate to it. He said how a forum that applies Qanoon-e-Shahadat and Code of Criminal Procedure for deciding the cases cannot be termed court?

Articles 4, 9, and 10A: Civilians cannot be tried by military courts, SC told

Khawaja Haris was rebutting the contentions of the respondent counsels. He told a seven-member Constitutional Bench of the Supreme Court that he would take at least one week to rebut several objections raised by the respondents.

The bench headed by Justice Aminuddin Khan, on Monday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.

Hamid Khan, appearing on behalf of Lahore High Court Bar Association (LHCBA), argued that in the judgment of the Rawalpindi District Bar Association (RDBA) case, the apex court held that if there will be military courts then those will be for a limited purpose and the defined group of people, and constitutional amendment would be required for establishing them.

There should be remedy before the High Courts and Supreme Court against the orders of the Court Martial, but these formalities have not been fulfilled in the instant case. He said the RDBA judgment allowed the trial and said that the sentences awarded by the military courts can be challenged under Article 199 of the Constitution.

He contended that the armed forces are part of the executive; therefore, cannot share the judicial power, adding there is no place for the military courts in the Constitution. Article 245 of the Constitution does not provide for the trial of civilians and establishment of the military courts.

Hamid Khan contended that the exception created in Article 8 (3) of the Constitution cannot take away fundamental rights under the Articles 4, 9, 10A, 13 and 25, in any circumstances, as fundamental rights are above all.

Replying to the court query, the LHCBA’s counsel stated that he was not asking to remove Article 8 (3), but wanted civilians should not be tried by the military courts.

Justice Jamal Khan Mandokhail questioned whether any person accused of an offence, which falls under the Army Act, 1952, can be tried by the military courts? Hamid Khan instead of responding to the query cited the Indian Supreme Court judgment that civilians cannot be tried by the Court Martial.

Justice Muhammad Ali Mazhar inquired from the counsel whether the military courts come under the ambit of Article 175 (1) of the Constitution. He asked whether they are part of judiciary or outside the scope of Article 175.

Hamid Khan responded that the judgment of the five-judge bench is comprehensive; therefore, no need of interference. He said that the scope of military courts is limited, and only for the trial of members of the armed forces. He said any institution which is part of executive cannot use the judicial powers, and if it does then violate the constitutional provisions. Holding civilians’ trial before the military courts is violations of Article 10A.

Justice Mazhar observed that the impugned judgment (SC five-judge bench) stated that military trial cannot be challenged on the basis of Article 175 of the Constitution, as the military courts do not come in the ambit of the said Article.

Justice Syed Hasan Azhar Rizvi questioned whether the SC’s judgment in the case of Sharaf Faridi had given reference or observation of military courts. Hamid replied that the judgment stated that the separation of judiciary from executive is mandatory and not declaratory.

Hamid Khan contended that the constitutional cases have serious implication, and decision passed in violation of the constitution would have repercussion, as still people have not forgotten Dosso case. He urged the bench to decide the case in a way that have affect in the coming time and the future.

The case was adjourned until today (Tuesday).

Copyright Business Recorder, 2025