ISLAMABAD – Two senior judges of the Supreme Court of Pakistan, Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan, have issued a dissenting note declaring the trial of civilians in military courts as unconstitutional and beyond the jurisdiction of such tribunals.
Their joint note challenges a recent majority decision by a seven-member bench of the apex court, which had, by a 5-2 verdict, reinstated the military’s authority to try civilians involved in the May 9 attacks on military installations. The verdict came in response to Intra Court Appeals (ICAs) filed by the federal government, Ministry of Defence, and other stakeholders.
Dissenting Judges Reject Military Jurisdiction Over Civilians
In a detailed 36-page dissent, Justice Mandokhail asserted that individuals not ordinarily subject to the Pakistan Army Act (PAA) — i.e., civilians — cannot be prosecuted by courts martial under Section 2(1)(d) of the Act. He emphasized that military officers, though proficient in handling matters of defense, lack the legal training and judicial experience required to oversee complex criminal trials with serious consequences.
Justice Afghan endorsed this stance, reinforcing the principle that criminal cases involving civilians should fall strictly under the jurisdiction of the country’s independent judiciary.
Courts Martial Not Suited for Civil Justice
Justice Mandokhail argued that courts martial were originally designed to handle violations committed by military personnel and not to address criminal or terrorism-related cases involving civilians. He recalled that during a period of heightened security concerns in 2015, the 21st Constitutional Amendment had temporarily expanded military courts’ jurisdiction to terrorism cases, but only for a limited four-year period, which ended in 2019.
Following that, he maintained, military courts ceased to have any legal authority to prosecute civilians. “Despite the extended powers granted, the goal of eradicating terrorism was not achieved, which further proves that this was not the appropriate mechanism,” he stated.
Misplaced Distrust in Civilian Judiciary
Criticizing the federal and provincial governments for bypassing the civilian legal system, Justice Mandokhail expressed regret that elected governments appeared to have lost faith in Pakistan’s criminal justice institutions. Instead of strengthening civil courts through better investigations, witness protection, and prosecutorial support, the authorities had burdened military courts with tasks outside their intended scope.
“The civil judiciary consists of trained, impartial officers solely responsible for delivering justice. Unlike military officers, they operate independently of executive pressure,” he wrote.
Islam’s Emphasis on Justice and Judicial Independence
Justice Mandokhail drew upon Islamic principles, highlighting how the Holy Quran, Prophet Muhammad (PBUH), and the caliphs, particularly Hazrat Umar (RA) and Hazrat Ali (RA), emphasized an independent judiciary. He noted that Islamic teachings place a high spiritual and social value on delivering justice without fear or favor.
He stated, “Muslim jurists have held that impartial judgment is a form of worship next only to belief in Allah, underlining the critical role of independent courts in any just society.”
Military Trials Set Aside
Concluding the dissent, Justice Mandokhail ruled that all convictions and sentences passed by military courts against civilians in connection to the May 9 riots were without lawful jurisdiction and therefore null and void. He noted that some individuals had already served their sentences or had been acquitted, but stressed that the original trials themselves were unconstitutional.
The dissenting opinion raises significant constitutional questions and highlights the growing debate over the balance between national security and civil liberties in Pakistan.
