SC judge questions ‘executive’s role as judge’ in military trials of civilians

Justice Jamal Mandokhel of the Supreme Court’s (SC) constitutional bench on Tuesday said that how on earth the executive could play the role of a judge in the event of any crime committed against it, reported 24NewsHD TV channel.  

During the hearing of the petition filed against the annulment of the trial of civilians in military courts, Justice Mandokhel remarked, “The constitution is explicit that the executive could not act as a judge. This is a basic point in the entire case.” 

A seven-member bench, headed by Justice Amin-ud-Din Khan, heard the plea.   

“There is a provision for anti-terrorism courts in the law,” he said, and questioned, “How could the executive itself become a judge when there is such a provision?” 

Khawaja Haris, counsel for the Ministry of Defence, replied he agreed what he had said.  

Justice Mandokhel was of the view that only the trials of members of the armed forces could be held under the Army Act.   

Disagreeing with the judge’s remarks, Haris said that no that was not case. “People belonging to other walks of life can also be tried in military courts.”  

He added the SC in the past had ruled that the civilians who worked under the Pakistan Army could be court-martialled. 

At the outset, Justice Amin said that today the bench would only hear the civilians’ military trial case and all other cases had been delisted.  

Justice Mandokhel went on to say whether a citizen lost his fundamental rights after having been recruited into the forces. 

Haris said that the Act could not be challenged merely on the basis of infringement upon fundamental rights.

“The issue of military courts is completely separate from that of Article 175 of the constitution,” the judge said. 

“What would be the situation if a citizen walks up to a military checkpoint despite having been stopped? Will he be tried in a military court for interfering in official duty?” he questioned.

Haris expressed his inability to comment on these remarks. 

Justice Muhammad Ali Mazhar said the answer to this was simple. “If that citizen is found committing an act that has been declared an offence under the Act, then he would be tried in a military court. But he only stands close to a checkpoint, this will not constitute an offence.” 

Justice Musarrat Hilali opined that Justice Mandokhel’s question was most pertinent. “Where a civilian will be tried in case he has a scuffle or an argumentation with army personnel at a checkpoint.”

She went on to say that the powers had been broadened to try ordinary citizens in military courts.

Justice Mandokhel said that the purpose of the Army Act was to discipline the personnel of the armed forces. 

Then addressing Haris, he said the way he was defining the Act, it would cover everything.  

The bench ordered the Punjab government to submit a report on the state of prisoners in Punjab jails convicted in the May 9 cases when Hafeezullah Niazi complained that the convicts were not being treated according to the jail manual.  

As the hearing drew to a close, Niazi walked up to the rostrum. 

But he was stopped by Justice Amin who said he was afraid he (Niazi) would raise political issues in the court. 

However, Niazi assured him he would not, adding that the military courts did not give any reason for declaring the May 9 suspects guilty. “The rights other prisoners enjoy in jails have been denied to those serving prison terms in connection with the May 9 violence,” he complained. 

Later the court adjourned the case’s hearing until tomorrow. Khawaja Haris will continue his arguments tomorrow. 

Reporter: Amanat Gishkori