ISLAMABAD: On Friday, a justice of the Supreme Court questioned whether military court presiding officers are competent enough to administer harsh penalties.
During a hearing where the federal government defended the use of military courts to try civilians involved in the May 9 violent protests when PTI workers attacked military installations, Justice Jamal Khan Mandokhail of the constitutional bench noted, “I have been in the judiciary for the last 34 years and I’m still learning.”
Justice Mandokhail also questioned whether the military court’s presiding officer was a skilled and informed legal professional who was aware of the consequences of imposing such penalties.
Additional Attorney General (AAG) Chaudhry Aamir Rehman told the seven-judge panel that only 105 of the 5,000 suspects were indicted under the Official Secrets Act (OSA) and the Pakistan Army Act (PAA) 1952 on the basis of “solid evidence.”
He clarified that following the violence, which included attacks on military sites, 35 FIRs had been filed.
As the bench considered intra-court challenges against the Supreme Court’s five-judge ruling on October 23, 2023, that declared military court trials of civilians invalid, the government provided an explanation.
Justice Musarrat Hilali questioned the authority of military tribunals to take jurisdiction over FIRs filed under the Anti-Terrorism Act (ATA) and the Pakistan Penal Code (PPC).
AAG Rehman said that three FIRs, including one with OSA sections, had been filed with the court and expressed regret that the federation had not produced copies of the FIR filed against the prisoners in spite of her repeated requests.
The Ministry of Defense’s Khawaja Haris Ahmed promised the court that all trial records will be provided. He clarified that more charges might be brought as investigations progressed and mentioned that convictions from military tribunals have previously been overturned by the Supreme Court in higher courts.
Justice Jamal Khan Mandokhail noted that the goal of the highest court should always be to serve the interests of the people when interpreting the law. Nonetheless, the attorney clarified that the welfare of the people was always linked to the welfare of the state and not to a select few who jeopardize the state’s interests and security.
“It is a well-established legal principle that the courts should always prioritize resolving any conflict by preserving the legal instrument, rather than overturning a law that is being challenged,” the attorney stated.
Justice Mandokhail expressed sadness that the supreme court was unable to consider merits, stating that the judiciary would be powerless if military courts, disregarding the criminal justice system’s criteria, sentenced a civilian accused person to death on the basis of erroneous or insufficient evidence.
Justice Mandokhail emphasized, “We must exercise caution when resolving this issue in a manner that limits the military courts’ jurisdiction so that it applies to an increasing number of civilians.”
However, the lawyer responded that if the military courts’ assumption of jurisdiction was founded on mala fide (in poor faith) or coram non judice (not before a judge) and lacked legal authority, then courts might step in.
With reference to the Said Zaman Khan case from 2016, the attorney clarified that the Supreme Court had ruled that any conviction rendered by military courts could be appealed to a higher court. The ruling also made clear that certain rights could not be granted to those who are being tried in military courts.
The attorney contended that under Section 2(1d)(i and ii) of the PAA, military court jurisdiction only extended to issues that directly affected national security. Citing a previous airline hijacking case in which the Supreme Court determined that the lives of the passengers were not in danger, he explained that offenses such as hijacking are covered by the ATA and not the PAA.
Concerns regarding military court procedures were voiced by Justice Hilali, who pointed out that commanding officers make the final judgments rather than presiding officers. “How could the judgment be handed over by an officer who hadn’t heard the case?” Justice Hilali asked.
She brought up Khyber Pakhtunkhwa’s precarious security situation, pointing out that instances involving assaults on army troops were not brought before military courts.
Only military officials preside over cases in military courts around the world, according to Justice Muhammad Ali Mazhar. The attorney clarified that those military officials had trial-conducting experience.
Justice Naeem Akhtar Afghan noted that there was a widespread belief that the military court trial merely involved punishment, emphasizing that it would have been proper to provide an explanation of the steps of the process. He recalled that he had heard instances of this like in the Balochistan High Court and was aware that court martial offered the opportunity to hire a lawyer of one’s choosing.
