SC questions constitutionality of civilian trials in military courts

The Supreme Court of Pakistan Monday resumed its high-profile hearing on the legality of civilian trials in military courts, with the Ministry of Defence’s counsel, Khawaja Haris, presenting extensive arguments in support of the military's jurisdiction. 

However, he was unable to complete his submissions, prompting the bench to adjourn proceedings until Tuesday.

The seven-member constitutional bench, led by Justice Aminuddin Khan and comprising Justices Jamal Khan Mandokhail, Musarrat Hilali, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Naeem Akhtar Afghan, and Shahid Bilal, is hearing petitions challenging the trial of civilians in military courts—a matter that has raised critical constitutional questions about the separation of powers and judicial oversight.

Khawaja Haris argued that under the Pakistan Army Act, the armed forces have the legal authority to arrest civilians involved in acts such as vandalizing military installations or stealing military property. He emphasized that in such cases, military jurisdiction applies, citing judicial precedents, including rulings by former Chief Justice Saeed-uz-Zaman Siddiqui.

 Justice Jamal Mandokhail, however, raised critical concerns about the constitutional basis for these trials. 

He pointed out that military courts do not appear to fall under Article 175 of the Constitution, which governs the structure and authority of regular courts. 

In response, Haris maintained that court-martial proceedings derive their legitimacy from separate constitutional provisions and the Army Act.

 Justice Mandokhail further inquired about the procedural aspects of such cases, questioning how First Information Reports (FIRs) are registered and how investigations are conducted. 

He highlighted that, under Section 2(d) of the Army Act, an individual becomes an accused only after a formal charge sheet is filed.

 Justice Muhammad Ali Mazhar emphasized that the filing of an FIR is a legal prerequisite for any arrest, while Justice Hasan Azhar Rizvi noted that detainees must be presented before a magistrate—a practice not typically observed in military court proceedings.

In a significant observation, Justice Mandokhail underscored the judiciary’s limited role in assessing the potential impact of its verdicts on terrorism, “Controlling terrorism is Parliament’s job, not the court’s,” he remarked. 

He cautioned against the court becoming entangled in policy decisions, which could compromise its constitutional mandate to interpret the law without bias or external considerations.

 Haris maintained that numerous judicial decisions support the use of military courts in specific contexts involving national security. He argued that Parliament has the legislative competence to determine the appropriate forum for trial and that military courts serve a valid purpose under extraordinary circumstances.

Despite the intense deliberations, the hearing concluded without a final ruling, and the bench adjourned until Tuesday.