'We even legitimised military dictators': SC judge on laws contradicting Constitution

Justice Jamal Khan Mandokhail of the Supreme Court (SC) has said that understanding the purpose of the Army Act would solve half the issues pertaining to military trials.

Hearing intra-court appeals regarding the trial of civilians in military courts, Justice Mandokhail, who was a part of the seven-member constitutional bench headed by Justice Aminuddin Khan, remarked that a category of civilians also fell under the Army Act.

Last year, the apex court's constitutional bench had granted conditional permission to military courts to announce verdicts in cases involving 85 suspects in the May 9 riots case. In its order on the hearing of the appeals against civilians' military trial, the constitutional bench had said judgments of military courts would be conditional to the top court verdict on the cases pending before it.

While this had led to dozens of convictions, the military had in January accepted mercy pleas of 19 out of the 67 convicts on “humanitarian grounds”.

During Monday’s hearing, Uzair Bhandari, the lawyer representing Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, presented his arguments.

Justice Mandokhail questioned how it would be determined which civilians came under the jurisdiction of the Army Act and which did not, noting that the Constitution granted the military two types of powers — one for defence and the other for assisting the civil government.

He further stated that if the argument based on Article 245 was accepted, how would the military defend its own institutions. He questioned whether in the event of an attack on the General Headquarters (GHQ), authorities would have to wait for an Article 245 notification.

At this, Imran’s lawyer responded that if someone is firing bullets, no permission is needed for defence. In case of an attack, all institutions, including the police and military, take action, he added.

“If a military officer and a civilian together violate the Official Secrets Act, where will the trial take place?” asked another judge, to which Bhandari said that such a trial would be conducted in an anti-terrorism court.

This was the point when Justice Mandokhail remarked, “If we understand the purpose of the making the Army Act, half the issue will be resolved.” 

He added that the Constitution clearly stated that it was a law related to the armed forces. He noted that in disciplinary action against a civilian officer, the power to impose punishment had not been granted, whereas military courts had been given this authority.

“If an army officer commits a crime while on leave, where will the trial be held? Is the jurisdiction of military courts very broad or limited?” he asked and pointed out that in Karachi, the trial of Rangers personnel was conducted in a civil court.

Justice Mandokhail remarked that the Constitution was made by Parliament, and legislation could only be done in accordance with the Constitution. "No law can be made that contradicts the Constitution. Our dilemma is that laws are sacrificed for politics.”

“We have even legitimised military dictators,” he added.

Later, the constitutional bench adjourned the hearing till Tuesday (Feb 25).