Islamabad:
Judge Muhammad Ali Mazhar, from the Constitutional Bank of the Supreme Court, observed on Wednesday that the military courts were not part of the Judiciary, adding that there was no judicial ruling that defined the military courts as part of the Judiciary.
“First, let the Military Court be recognized as part of the Judiciary, then talk about separating it from the Judiciary,” he said.
The comments were made as a bank of seven judges, led by Judge Aminuddin Khan, heard Intra-Court appeals that challenged October 23, 2023, which fails by a bank of five judges that annulled the military judicial trials of civilians involved in the violence of May 9.
During the procedure, lawyer Abid Zuberi, who represents former SCBA officials, argued that the Attorney General had violated the guarantees granted to the Court.
He pointed out that the written guarantees of the Attorney General were mentioned in the Bank’s decision of five members.
During his arguments, Zuberi recalled that former general military ruler Ziaul Haq had ordered a military trial for FB Ali in 1978, but then released him. To this, Judge Commandkhail said that the Zia generation did what FB Ali wanted to do.
Judge Mazhar said that the Army Law provided a complete procedure for military trials, ensuring fundamental rights. However, he pointed out that “if the procedure was not followed, then its mere existence makes no sense.”
Judge Mazhar also pointed out that there were two key objections to military trials: their lack of perceived impartiality and the limited legal experience of those who conduct them.
The lawyer Zuberi argued that the military courts functioned as part of the Executive. Given this, Judge Mazhar questioned: “What is the role of the army? Where does the Executive enter?” Zuberi replied: “Army’s work is to defend borders.”
Judge Commandkhail added that the role of the army was the national defense.
Judge Mazhar then questioned whether Zuberi considered that the military courts were part of the Judiciary. “If you recognize them as the Judiciary, the consequences will be different. If a military court is judicial, then it is part of the Judiciary. Judge Munib did not classify military courts as the Judiciary.”
Zuberi reiterated that the decisions of the Supreme Court have established that civilians cannot be marked in court for civil crimes. “Military courts are not part of the judicial system under the Constitution. They can only prove civilians who are part of the army. According to articles 10-A and 4, civilians cannot be marked in court.” In addition, he argued that according to section 2-D, article 8 (3-A) does not apply to the accused.
However, Judge Mazhar said that article 8 (3-A) includes the term “other people”, added that no ruling has provided clarity over military courts so far.
Zuberi insisted that “according to article 10-A, military trials cannot be done.” Judge Mazhar questioned: “Where does the arrangement of Nexus fit?”
Judge Commandkhail said that section 2-D does not explicitly mention the military courts, but only states that a trial for the crime will be held. “It does not specify which forum will carry out the trial,” he said.
Zuberi informed the court that amendments had been made to include military trials for attacks in military facilities. Judge Hasan Rizvi replied: “These attacks are still happening, there was an attack on Bannu Cantt yesterday.”
