ISLAMABAD: Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan of the Supreme Court of Pakistan Friday ruled that the civilians’ trial in military courts was unconstitutional.
In their dissenting note on a petition challenging the apex court orders against the civilians’ trial in military courts, the two judges said civilians could not be court-martialed.
A seven-member larger bench — headed by Justice Aminuddin Khan — by 5 to 2 majority had set aside the apex court judgment declaring the trial of civilians in military courts as unconstitutional after accepting the Intra Court Appeals (ICAs) filed by federal government, Ministry of Defence etc and allowed the military courts to proceed with the trials of civilians accused of attacking the military installations during May 9 riots.
In a 36-page dissenting note, Justice Jamal Khan Mandokhail held that the persons not otherwise subject to the Pakistan Army Act, civilians, accused of offences under clause (d) of subsection (1) of Section 2 of the said Act could not be tried by the courts martial in the context of Constitution and injunctions of Islam.
Endorsed by Justice Naeem Akhtar Afghan, Justice Mandokhail held that the military officers presiding the courts martial might be good at disposing military related matters, but they had no judicial expertise and experience to deal with criminal cases, with severe punishments.
“Generally, a wrong perception has been created as if the civil courts have failed to tackle the menace of terrorism and the courts martial are the solution to the problem,” the judge held.
Justice Mandokhail noted that basically, courts martial were convened only to prosecute persons subject to PAA accused of military offences or general offences adding that they did not have jurisdiction to deal the cases of terrorism or other criminal matters.
In the year 2015, Justice Mandokhail recalled that there was a warlike situation in the country adding that in order to curb terrorism, the legislature decided to extend jurisdiction of the courts martial to try cases relating to terrorism; consequently, 21st Constitutional Amendment was introduced in the year 2015, pursuant thereto, the PAA was amended and courts martial jurisdiction was extended to try offences other than those mentioned in the Act, initially for two years, which period was extended for further two years, till 2019.
Thereafter, Justice Mandokhail said, the courts martial could not prosecute non-military persons but added that a question arose whether the desired result of eliminating terrorism was achieved after the twenty-first Constitutional Amendment.
“It is a fact that within the prescribed period of four years, courts martial tried hardcore criminals and terrorists, but unfortunately, the situation did not improve nor was the desired goal of eliminating terrorism achieved,” Justice Mandokhail held adding that naturally, because it was not the job of the army officer to prosecute these criminals.
Moreover, Justice Mandokhail noted that the criticism of criminal courts was unfounded. It had not been supported by any reliable data.
The judge noted that nowhere in the world, courts martial tried terrorism related cases adding that it was true that the conviction rate by the criminal courts was low, but it did not mean these courts did not have the will to do proper justice.
“We have observed that mostly acquittals are result of frivolous and politically motivated cases, flawed and unprofessional investigation, poor prosecution, and inadequate or lack of witnesses,” Justice Mandokhail held.
The judge noted that the present appeals had been filed by the federal government, the Government of Punjab and Government of Balochistan.
Unfortunately, it seems they have lost trust and confidence in the criminal courts and we are sorry to say that these elected governments instead of addressing the politically motivated and frivolous cases, improving the system of investigation, establishing a mechanism of collecting truthful witnesses and protecting them, providing workable atmosphere, protection to the judges and improving the judicial system, showed a no-confidence upon criminal courts and opted to burden the courts martial with such a huge responsibility,” Justice Mandokhail held.
Justice Mandokhail held that courts martial could not be considered on a par with the judicial officers, who were not only law graduates but also had the only function to deliver justice, with vast judicial experience to their credit. He further observed that they were independent, impartial and without the influence, command and control of the executive.
Justice Mandokhail further held that the federal and provincial governments instead of attending the causes for terrorism and taking preventive measures before it happened, were trying to achieve its goal through the courts martial, which was not a correct approach.
The judge further noted that expecting the ordinary criminal courts to convict persons without evidence and material, and connecting them with the offence, would amount to violating the principle of natural justice, fair trial and due process.
“We are unable to understand that when the prosecution lacks evidence and there is no possibility of conviction of the accused, how can he be convicted by the courts martial,” Justice Mandokhail held adding that they were confident that if the cases were properly investigated with solid proof, there was no reason, why the criminals will go scot-free.
Justice Mandokhail recalled that through the order dated 25.03.2024, they had permitted the courts martial to proceed with the trial, subject to the outcome of these appeals.
Consequently, a number of accused were convicted and sentenced for different terms. Some of them have completed and undergone their sentences or some might have been acquitted of the charge.
“As we have concluded that the courts martial have no jurisdiction to try civilians, therefore, the convictions and sentences awarded by the courts martial to persons allegedly responsible for the occurrence of 9th May, 2023 are declared to be without jurisdiction, hence, the same are set aside,” Justice Mandokhail held
The judge further held that the Holy Quran and the Prophet (PBUH) stressed the need for unbiased and impartial judiciary as a vital principle of rule of law adding that to serve the common people with fair justice, the great Caliph, Hazrat Umar (R.A.) separated the judiciary from the executive and declared it a sovereign and independent organ of the state, in order to proceed without any bias, fear, favour, pressure or influence of State or from any outsider.
Hazrat Ali (R.A.) is known for his wisdom and justice and he emphasized that the system of disbelief (kufr) can work but system of injustice cannot work. He urged that nothing can cause nations to flourish like justice.
“The Muslim jurists described that the obligation of an independent, impartial and a righteous judge is a worship of the highest rank, after the belief in Allah and this proves that Islam recognizes the administration of justice as one of the most important duties of the judges,” Justice Mandokhail held.
