SC judges raise questions about fairness of civilians' military trials

The Supreme Court seven-member constitutional bench headed by Justice Aminuddin Khan, continued hearing the intra-court appeals challenging the validity of trying civilians in military courts on Friday.

During the proceedings, Justice Jamal Mandokhail emphasised the need for those convicted by military courts to have the right to appeal in civilian courts.

According to the 24NewsHD TV channel, Justice Mandokhail stated that while the military court appeals can be heard to a limited extent, the merits of the cases are not debatable.

Justice Mandokhail remarked, “Our armed forces consist of over 700,000 individuals. We are here to ensure justice for both civilians and military personnel. Military courts must adhere to fair trial procedures.”

He questioned the competence of military officers to issue severe punishments such as the death penalty and expressed concerns about the trial processes in military courts.

Justice Mandokhel asked the lawyer of the ministry of defence to please satisfy the trial procedure in military courts, as I have been in this field for 34 years, and still I do not consider myself complete, so does an army officer have enough experience to hear sentences up to the death penalty?

Justice Mandokhel said there is a difference between the Army Act and other laws; the constitution protects all fundamental rights.

Justice Musarrat Hilali observed that the officer conducting the trial does not announce the verdict himself. Instead, the trial is forwarded to a senior officer who makes the final decision.

Justice Musarrat Hilali also raised concerns about how an army officer, who was not present during the trial, could write down a judgement in the case.

Justice Naeem Akhtar Afghan noted the general perception that military courts primarily focus on issuing punishments only. He shared his experience from the Balochistan High Court, where court-martial appeals allowed defendants to hire lawyers of their choice.

Justice Hassan Azhar Rizvi added that field court martials involve defence lawyers but no formal judges. He elaborated that during military trials, a defence lawyer and a fellow officer are appointed to assist the accused, ensuring cross-examination of witnesses.

Advocate Khawaja Haris, representing the Ministry of Defence, argued that the Army Act is a special law with distinct procedures for evidence collection and trial.

He assured the SC constitutional bench that the detailed procedure for military trials would be explained in the subsequent sessions of his arguments.

Justice Musarrat Hilali remarked during the hearing that the FIRs filed on May 9 included provisions under the Anti-Terrorism Act (ATA). She questioned how military trials were conducted under those provisions. She asked the Defence Ministry's lawyer, “You provided examples of military trials in the United States. If such trials take place in other countries, who acts as the judge?”

Justice Muhammad Ali Mazhar noted that military officers preside over court martials worldwide. Khawaja Haris assured the court that officers conducting court martials are experienced in handling trials.

Justice Musarrat Hilali raised another question, citing an incident where airport lights were turned off to allegedly force an army chief’s plane to leave the country. She remarked, “Passengers' lives were endangered, and the plane had minimal fuel. Yet, this one incident led to the imposition of martial law. Even after martial law, this trial did not proceed in a military court.”

Khawaja Haris countered, “How can someone not present on the plane commit hijacking? The Supreme Court later reviewed the case and acknowledged that the plane had sufficient fuel.”

He argued that hijacking is not an offence listed under the Army Act, which is why the trial could not be conducted in a military court.

Justice Ameenuddin Khan responded, “Alright, the distinction on this point is now clear. Let’s move forward.” However, Justice Musarrat Hilali interjected, saying, “Wait, one more question arises here. If hijacking involves a warplane or military aircraft, where will the trial take place?”

Justice Jamal Mandokhail added, “With a majority, you can include hijacking and even Section 302 under the Army Act tomorrow. Who can stop you? We must also protect the rights of seven to eight hundred thousand soldiers. Appeals against military court decisions can only be reviewed on grounds of bad faith or jurisdiction.”

Justice Musarrat Hilali reiterated, “The FIRs of May 9 contained ATA provisions. I still do not understand how military trials were conducted under those sections.”

During the proceedings, the additional attorney general informed the court, “Military courts only took up cases of individuals whose presence at the crime scene was proven. Although the number of accused was over 5,000, only 105 individuals with concrete evidence against them were subjected to military trials.”

Later, the court adjourned the hearing till Monday, January 13, 2025.

Reporter: Amanat Gishkori