ISLAMABAD - A nine-member bench of the Supreme Court has been constituted for hearing of petitions against the trials of civilians by the military courts.
The bench, headed by Chief Justice Umar Ata Bandial, comprises Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijaz ul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik. The bench will conduct hearing of the petitions today at 11am.
In this matter, former Chief Justice of Pakistan Jawad S Khawaja has also filed a petition under Article 184(3) of the Constitution challenging the trial of civilians in military courts.
In his petition, he raised the question that when the civilian courts are functioning, civilians, not in active service, cannot be tried in military courts. The petitioner submitted that the court martial of civilians and Article 2(1)(d)(i) and (ii) of the Pakistan Army Act 1952 should be declared unconstitutional on the grounds:
a) The Pakistan Army Act 1952 is meant for maintaining the internal discipline of the Armed Forces and cannot extend to civilians when the ordinary courts are functioning.
b) The trial of civilians by military courts when the Armed Forces are called in aid of civil power is contrary to Article 245 of the Constitution as it displaces civil power and does not “aid” it. c) The military, as part of the executive, cannot undertake trials as judicial power can only be exercised by the judiciary. The trial of civilians by military courts also infringes upon Article 175(3) of the Constitution and is contrary to the separation of powers.The petitioner has clarified that it has no personal interest in this case and he is seeking relief for the benefit of all citizens regardless of political affiliation. He questioned whether civilians can be court martialed under the constitutional framework of Pakistan, when civilian courts are functioning, adding that under no circumstance can civilians who are not in active service be tried in military courts. He said that the government and the Armed Forces have indicated that they propose to court martial certain civilians for involvement in the offence allegedly committed on May 9, 2023. In spite of the fact that the allegations revolve around attacks on or offences in respect of property within cantonments or so-called military installations, the petitioner submitted that any such alleged offences by civilians may only be tried by ordinary criminal courts.