The head of the Supreme Court of the Constitutional Bank of Pakistan has affirmed that the laws cannot be annulled solely due to their misuse, which highlights the principle that the undue application of the legal provisions does not make them unconstitutional.
The comments were produced during an intra-Court appeal with respect to the trial of civilians by military courts.
The case, heard by a constitutional bank of seven members led by the president of the Supreme Court Amin-Din-Din Khan, revolves around the controversial issue of civilians who are tried by military courts for alleged crimes.
During the hearing, Judge Jamal Commandkhel raised critical questions about the jurisdiction of military courts, consulting whether civilians, who are not part of the armed forces, can be submitted to military trials simply because the nature of their alleged crimes is considered severe .
He asked: “Can a person who is not part of the army be judged by a military court simply based on the crime they are accused of?”
The main lawyer Salman Akram Raja, who represents the petitioners, vehemently argued the military judgment of civilians.
Raja emphasized the importance of safeguarding fundamental rights, stating that military courts should not have the authority to prove civilians unless their actions directly threaten national security or armed forces.
He cited the historic FB Ali case of 1962, where the Supreme Court ruled that civilians could only be tried in military courts if their alleged activities were directly linked to National Defense Affairs.
In response, Judge Commandkhel questioned the scope of the powers granted to the military courts under the law of the Pakistan army.
He asked Raja to clarify whether the law allows military courts to try civilians for acts not related to military affairs or national security, with the focus on the severity of the crime instead of the state of the accused as a member civil or military.
Raja argued that the right to a fair trial is a cornerstone of the Constitution and that the military courts should not be used as a substitute for civil courts, particularly when the case does not involve the Armed Forces.
He argued that the previous judgments have emphasized the need for civil judgments, with military courts reserved for cases involving direct military personnel or national defense issues.
Judge Amin-Din Khan added that while the misuse of a law is really unfortunate, it should not serve as a basis to declare that the law is not constitutional.
He reminded the lawyer that the laws are designed to serve the broader public interest, and any case of misuse must be addressed through corrective measures, rather than through general cancellations.
He also elaborated that the laws should be evaluated about their general purpose and not only in isolated cases of their abuse.
The hearing continued with discussions about whether military courts have jurisdiction to prove civilians for non -military crimes and if such judgments violate constitutional rights.
While the case is still ongoing, the bank said that challenging the legality of military trials based on the potential for misuse would not be sufficient without demonstrating that the law violates the constitutional guarantees of fundamental rights.
Judge Commandkhel also pointed out that, in previous cases, the courts had failed in favor of protecting fundamental rights, including the right to a fair and impartial trial.
He warned that any expansion of the jurisdiction of military courts should not reach the coast of civil rights.
The court also deepened the complexities of the military court trials compared to civil judgments. Judge Mohammad Ali Mazhar raised concerns about whether the law of the Army applies to civilians involved in serious crimes such as terrorism, while Judge Hassan Azhar Rizvi discussed the potential role of foreign agencies in instigating civilians to act against The State.
Salman Akram Raja responded by pointing out that in countries like India, military trial procedures offer a more fair system, including the provision of appeals in a civil court.
He argued that the military trials in Pakistan, where the head of the army listens to the appeals, lack transparency and equity, leaving civilians at a different disadvantage.
Judge Commandkhel said that the civil court trial by military courts raises deep questions about the relationship between civil and military legal systems in Pakistan.
He questioned whether such essays would be justified in cases where the defendant is not involved in any crime related to the army.
Judge Amin-Din Khan concluded remembering all the parties involved that the main approach should be to maintain constitutional principles and ensure that justice is served fairly.
He pointed out that while the misuse of legal provisions is a valid concern, it should not lead to the dismantling of laws that have a greater purpose, especially when they are aligned with national security concerns.
The bank postponed the audience until Monday, February 9, 2025, when Salman Akram Raja will continue his arguments.
