ISLAMABAD: Supreme Court Justice Muhammad Ali Mazhar remarked that neither the armed forces nor military courts are part of the judiciary, and there is no judicial ruling that defines military courts as part of the judiciary.
These comments came during a session on Wednesday, where a seven-member constitutional bench of the Supreme Court, led by Justice Amin-ud-Din Khan, heard the federal government and the Ministry of Defence’s petitions challenging the military trial of civilians as unconstitutional.
The bench included Justices Jamal Khan Mandokhail, Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
During the proceedings, Advocate Abid Zuberi, representing former officers of the Supreme Court Bar Council, presented his arguments. He referenced FB Ali, a hero of the 1965 war, who was accused of misusing his office after retirement. “How could a retired person misuse his position?” he asked. He noted that Gen Ziaul Haq conducted a military trial of FB Ali, but released him in 1978.
Justice Mandokhail responded, saying that Gen Zia did what FB Ali had wanted.
Justice Mazhar noted two main concerns regarding military courts: their lack of impartiality and the fact that those conducting the trials are often inexperienced in legal matters.
When asked whether military courts are part of the judiciary, Advocate Zuberi argued that they are part of the executive branch.
Justice Mazhar responded, “What do they have to do with the executive?” Zuberi answered that the army’s primary responsibility is to defend the country.
Justice Mandokhail added that the military’s role is indeed to safeguard the nation.
Justice Mazhar then asked, “Do you accept military courts as part of the judiciary? If so, the implications will be very different.” He pointed out that in a previous ruling, Justice Muneeb Akhtar did not classify military courts as part of the judiciary and stressed that no verdict clarifies the military courts’ judicial status.
Justice Mandokhail explained that while military courts are not mentioned in Section 2(d), the section does state that a trial should take place without specifying the forum. He noted that anti-terrorism courts deliver sentences when evidence against an accused is presented.
Justice Mazhar responded that military courts should first be acknowledged as part of the judiciary before demanding their separation from it. “The armed forces are not part of the judiciary, and no court decision has declared military courts as part of the judiciary,” he emphasized.
Justice Mandokhail noted that while the term “court martial” appears in the law, it does not refer to military courts.
Zuberi argued that only civilians who are part of the armed forces can be tried in military courts, citing Article 10A and Article 4, which he claimed prohibit the court martial of civilians. He added that Section 2D, sub-clause 3A of Article 8 does not apply to the accused.
After hearing the arguments, the court adjourned the hearing until Thursday.
