SC judge asks whether armed forces could exercise judicial powers
ISLAMABAD: Justice Jamal Khan Mandokhel questioned whether armed forces, which are subordinate to the executive could exercise the judicial power.
A seven-member SC Constitutional Bench, headed by Justice Aminuddin Khan, on Thursday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.
Founding chairman of Pakistan Tehreek-e-Insaf (PTI) Imran Khan’s lawyer Uzair Bhandari gave arguments over the separation of powers and the jurisdiction of the military courts.
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He urged the court to find out ways to stop the trials of civilians by the Court Martial in future. He argued that armed forces under Article 245 (1) act in aid of civil power when called upon to do so, but they cannot operate beyond the scope of Article 245, and have no power to exercise judicial functions.
He said if the armed forces wish to exercise judicial power over the civilians then the Parliament has to legislate, as the Parliament is the sources of all power.
He said armed forces cannot assume powers of legislature and the judiciary, and role of army under Article 245 cannot be enhanced.
Uzair informed that when 9th May incidents took place then Article 245 was invoked on May 10, 2023 and army was called in to act in aid of civil power in the Punjab, Khyber Pakhtunkhwa and Sindh. National Assembly had passed resolution and federal cabinet in its meeting decided regarding the trial of assailants before the military courts.
Uzair contended that oath of army personnel bound them that they would perform only those functions, which are to uphold the constitution. He submitted that in former Chief Justice Iftikhar Muhammad Chaudhry’s case it was held by the apex court that for every law and provision there should be constitutional backing, adding the law (Army Act) must be read within the framework of constitution.
Justice Jamal Khan Mandokhel said that the FB Ali judgment has been endorsed in all the subsequent verdicts of the Supreme Court, regarding the civilians’ trials. Uzair said the apex court need to examine Section 2(1)(d) of Pakistan Army Act, 1952 in the light of 1973 Constitution, as it talks about equality of citizens, due process and fair trial.
He contended how hardened criminal a civilian is, but he does not come in the ambit of Section 2(1)(d).
He urged the court to find out way to stop trials of civilians by the Court Martial.
Justice Amin said if the same offence is committed by a member of armed forces and a civilian, then why two different for their trial? He noted that the provision for trial of members of armed forces is existing since the constitutions of 1956, 1962
and Interim Constitution 1972.
Justice Amin further said that Defence Services Laws Amendment Ordinance, 1967, which introduced Section 2(1)(d) was adapted in 1973 Constitution. He questioned whether Court declaration is required to declare 1967 Ordinance ultra vires the constitution, or it could be done automatically.
Uzair replied, no. He argued that Article 175 of the constitution is self-executory, adding that India has placed 175(3) [separation of judiciary from executive] in chapter of policy, but Pakistani constitution has done nothing about it.
He stated the Parliament is empowered to alter, amend, modify or omit the laws, but if it does not do then the Court can do.
Justice Jamal remarked that if the courts add or modify laws then they are blamed that they have extended their jurisdiction. However, Uzair emphasised that in Benazir Bhutto case, the Court maintained that it can give the declaration.
If 1973 Constitution has continued pre-constitution laws then the courts can examine them. He argued that the Court is not going to strike down Court Martial but can say civilians should not be tried by the Court Martial.
The case is adjourned until Monday (Feb 24).
Copyright Business Recorder, 2025