ISLAMABAD – On Wednesday, Justice Musarrat Hilali stated that civilians were being tried in military courts for crimes such as the attack on APS. Can all civilians be treated the same?
She made the statement during a hearing of a case involving civilians being tried in military courts before the Supreme Court’s Constitutional Bench.
Justice Hilali stated that Pakistan’s Constitution is not suspended. The lawyer responded that basic rights still exist, as evidenced by judicial rulings.
She questioned the lawyer if the Army Act suspends all basic rights.
Justice Jamal Mandokhail inquired whether the military court would try individuals [civilians] who attacked army soldiers. Khawaja Haris stated that this case is not about deciding who can be tried in the future.
Justice Mandokhail stated that while it is asserted that the parliament is paramount, “in my opinion, the Constitution is supreme.”
The court stated that parliament does have the authority to enact legislation defining what constituted a crime. If parliament desires, it can enact legislation making it a felony to stare at someone with a crooked eye. Parliament also has the constitutional authority to create the court where this crime would be prosecuted. The Pakistani Constitution affords parliament this jurisdiction and obligation.
As the hearings began, Khawaja Haris, counsel for the Ministry of Defense, contended that the judicial ruling is based on Articles 8(5) and 8(3), which are wholly separate and cannot be merged.
According to Justice Mandokhail, the Constitution allows norms to be suspended but not eliminated, but rights cannot be suspended under Article 5.
Khawaja Haris contended that Article 233 is divided into two sections: one dealing with the Armed Forces and the other with civilians.
The attorney read the ruling declaring the military trial of civilians invalid, claiming that the F.B. Ali case had previously established that civilians might be prosecuted in military courts. He claimed that the majority’s conclusion misread Articles 8(3) and 8(5).
He said that the F.B. Ali case was incorrectly described as being of a different kind because the trial took place after his retirement. The ruling found that his situation was unique since he was not retired at the time the offense happened.
Justice Mandokhail observed that the accused in the May 9 disturbance are not members of the Armed Forces. Today, the phrase “ex-servicemen” is used, yet they were not even ex-servicemen. Let’s use the phrase “civilian.”
The court questioned whether civilians could be prosecuted under the Army Act. Is this only for certain civilians? The attorney responded that the popular perception is different, but the justice stepped in and restated his question: “Can civilians be tried or not?”
According to Justice Naeem Akhtar Afghan, the five-member bench found some portions of the Army Act unconstitutional. If we also declare these laws null and unlawful, citizens will be unable to face special court proceedings. If we reach a different result, we will need to decide which citizens can be prosecuted in special tribunals.
According to Justice Afghan, the Official Secrets Act was amended in 2023. He inquired about how these adjustments should be evaluated.
Justice Mazhar announced that several questions will be discussed tomorrow, and the hearing was adjourned.
The case is being heard by a seven-member Constitutional Bench led by Justice Ameenuddin Khan and including Justices Jamal Mandokhail, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal Hassan.
