ISLAMABAD: The Supreme Court (SC) on Tuesday observed that all institutions had collectively facilitated the extension of the former army chief’s tenure through a single notification, reflecting the state of affairs in the country.
The remarks came during a hearing of intra-court appeals (ICAs) filed by the federal government and the Ministry of Defence challenging the SC’s previous ruling that declared the trial of civilians in military courts unconstitutional.
Key Takeaways from the Hearing:
- Judicial Bench Composition: A seven-member Constitutional Bench headed by Justice Amin-ud-Din Khan presided over the case. The panel included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
- Parliament’s Role in Army Act: Justice Amin-ud-Din Khan questioned whether any lawmaker had ever proposed a private bill against the trial of civilians in military courts. PTI founder Imran Khan’s lawyer, Uzair Bhandari, responded that the issue was currently under judicial review.
- Military’s Judicial Powers:
- Justice Muhammad Ali Mazhar pointed out contradictions in the arguments, noting that the lawyer first claimed the army could not exercise judicial powers, but then stated it could for military personnel, but not civilians.
- The lawyer insisted that military personnel do not enjoy basic rights under Article 8(3) of the Constitution, citing a previous ruling by Justice Muneeb Akhtar.
- Case of Former Army Chief’s Tenure Extension:
- Justice Naeem Akhtar Afghan referenced the controversy surrounding the extension of the ex-army chief’s tenure, stating that initially, there was no law for such an extension. Parliament had to legislate on the matter following Supreme Court directives.
- Justice Amin-ud-Din Khan remarked that at the time, “everyone came together for a single notification,” which highlighted the realities of the state’s governance.
- Comparison with India’s Military Courts:
- The court discussed India’s system, where appeals against military trials are heard by an independent tribunal, questioning whether this right was granted through legislation or judicial orders.
- Justice Mazhar also cited the case of Kulbhushan Jadhav, where Pakistan provided special legislative provisions for appeal.
- Fair Trial Concerns in Military Courts:
- The lawyer argued that in court-martial proceedings, a death sentence can be imposed without a fixed-term judge, proper legal training, or a right to appeal in civilian courts.
- Justice Amin-ud-Din Khan humorously asked, “If they don’t allow even a piece of paper, where do these letters come from?”, causing laughter in the courtroom.
- Pending Cases in Military Courts:
- The court was informed that 103 civilians were currently facing military trials, raising concerns about the limited scope of high court intervention.
The hearing was adjourned, with Advocate Faisal Siddiqui set to present his arguments today (Wednesday).
