ISLAMABAD:
Supreme Court Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan issued a dissenting opinion on Friday in the case regarding the trial of civilians in military courts, declaring such court-martials unconstitutional.
In their detailed 35-page minority note, the judges stated that court-martial jurisdiction is strictly limited to military personnel and cannot be extended to ordinary civilians. They ruled that applying military courts’ authority over civilians violates the Constitution.
The dissent challenges the prevailing notion that civil courts are incapable of handling serious terrorism cases, calling this narrative misleading. It highlights that while military courts were temporarily authorized in 2015 to try terrorism-related offenses, the experiment failed to curb terrorism, partly due to the lack of judicial expertise among military officers to handle complex criminal cases.
The note points out that, globally, terrorism trials do not take place in military courts. It argues that criticism of the civil justice system is often misplaced, as acquittals in civilian courts generally stem from weak investigations, poor witness testimonies, or politically sensitive cases, rather than judicial incompetence.
Referencing Article 25 of the Constitution, the judges emphasized that all citizens are equal before the law and entitled to equal protection regardless of their background, religion, political beliefs, or any other classification. They warned that treating similarly situated individuals differently amounts to unconstitutional discrimination.
The dissent further stresses that the fundamental right to life and liberty, protected under Article 9 of the Constitution, guarantees citizens freedom from unlawful detention, harm, or threats. An independent judiciary is essential to safeguard these rights and act as a check on government power.
Article 10 ensures protections related to arrest and detention, including the right to legal counsel of the accused’s choice and a limit on detention without magistrate approval. The dissent notes that courts-martial under the Pakistan Military Justice System (MJS), which consist of executive officers, lack independence and impartiality and do not uphold these constitutional safeguards. Military custody does not follow the jail manual, and court-martial proceedings are conducted in-camera (closed sessions).
Moreover, the right to legal counsel is subject to the approval of the Chief of Army Staff or convening officer under Rule 82 of the Pakistan Army Act, 1954—a condition the dissenters say violates the unconditional constitutional guarantee under Article 10(1).
The note emphasizes that the accused’s fundamental rights under Articles 9 and 10 are infringed by the court-martial system’s procedures and detention practices.
It also highlights the constitutional significance of the right to a fair trial and due process, enshrined in Article 10A, added by the 18th Amendment in 2010. Due process protects citizens from governmental abuse and ensures that civil and criminal matters are resolved based on law, evidence, and established procedures.
The dissent criticizes both federal and provincial governments for choosing to use military courts for civilians instead of strengthening the civilian judicial system, a move deemed beyond constitutional limits.
The judges declared that punishments imposed on civilians by military courts for the May 9, 2023 incidents were outside military jurisdiction and therefore void.
The note concludes by reaffirming that justice must be delivered through civilian courts in accordance with the Constitution, ensuring every citizen’s right to a fair trial and upholding the rule of law.
