The Supreme Court of Pakistan has sparked significant constitutional debate over the controversial trials of civilians in military courts. In a recent hearing, the court clarified that civilians cannot be penalized merely for being present outside a military checkpoint. However, if a civilian commits a crime outlined in the Army Act, a trial will be conducted under its provisions.
This issue arose during the constitutional bench’s review of an appeal against the decision to try civilians in military courts. Defense Ministry lawyer Khawaja Haris presented arguments in favor of the trials, leading to thought-provoking exchanges between the bench and legal representatives.
Can Civilians Be Tried Under the Army Act?
Khawaja Haris argued that the Supreme Court had previously ruled that civilians connected to the military could face court-martial. The appeal, filed by the Ministry of Defense, challenges this precedent. Justice Jamal Mandokhel, however, questioned the legal grounds for such trials, asking whether the Ministry of Defense, as an executive body, could assume the role of the judiciary.
Justice Jamal remarked, “The Constitution is clear that the executive cannot act as a judiciary.” He emphasized that military courts, established for the discipline of armed forces, raise constitutional questions about their jurisdiction over civilians.
Expanding the Army Act’s Scope
The Army Act, traditionally limited to armed forces personnel, has become a focal point in the debate. Justice Jamal asked whether Article 8(3) of the Constitution, which pertains to military discipline, could encompass criminal matters. Haris countered, stating that the Army Act includes various categories beyond military personnel.
Justice Muhammad Ali Mazhar clarified, If a citizen commits a crime listed in the Army Act, there will be a trial. However, no action will be taken against a civilian merely for standing outside a military checkpoint.
This clarification sheds light on the extent of the Army Act’s applicability, raising questions about its potential overreach into civilian jurisdiction.
Fundamental Rights and Military Discipline
A critical aspect of the discussion revolved around the fundamental rights of individuals in the armed forces. Justice Jamal questioned whether individuals lose their fundamental rights upon joining the military. He argued that the Constitution ensures equal rights for all citizens, including those in the armed forces.
Justice Musarrat Hilali added, A civilian is being tried by expanding the powers [of military courts]. The question is whether this expansion aligns with constitutional principles.
The Role of Military Courts in Civilian Trials
Military courts were originally established to maintain discipline within the armed forces. However, their role in trying civilians has been a contentious issue, especially when their jurisdiction appears to overlap with civilian courts.
Justice Jamal highlighted historical instances of martial law in Pakistan, questioning whether the current application of the Army Act mirrors such authoritarian practices. He asked, If a civilian approaches a military checkpoint, does this amount to disrupting military duties? Would this justify a trial in a military court?
Khawaja Haris acknowledged the complexity of the situation but refrained from providing definitive answers. Justice Musarrat Hilali called this the“most important question in the case.
Constitutional Implications
The Supreme Court’s deliberations underscore the broader constitutional implications of trying civilians in military courts. The bench’s questions reflect concerns about the separation of powers, the role of the executive, and the protection of fundamental rights.
While the Defense Ministry defends the trials under the Army Act, critics argue that such practices blur the lines between military and civilian jurisdictions. Justice Muhammad Ali Mazhar’s remark about the Army Act containing specific provisions for criminal acts provides a nuanced perspective but leaves room for further interpretation.
Defining Jurisdiction and Rights
The Supreme Court’s review of civilian trials in military courts highlights a critical constitutional debate in Pakistan. As the bench scrutinizes the Army Act’s scope and its compatibility with fundamental rights, the case has far-reaching implications for the country’s legal and political landscape.
This case raises fundamental questions: Can the executive act as a judiciary? How far can military laws extend into civilian matters? And most importantly, how can Pakistan strike a balance between maintaining discipline and upholding constitutional rights?
The court’s decision will likely shape the future of military and civilian relations in the country, offering clarity on the limits of military jurisdiction in civilian affairs.