Supreme Court Justice Muhammad Ali Mazhar has observed that neither the armed forces nor the military court are part of the judiciary, nor is it written in any judicial verdict that the military court is part of the judiciary.
His remarks come as a seven-member constitutional bench of the apex court – headed by Justice Amin-ud-Din Khan – on Wednesday heard the federal government and defence ministry’s pleas against the military trial of civilians as unconstitutional.
The other members of the bench were Justice Jamal Khan Mandokhail, Justice Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Presenting his arguments on behalf of former officer bearers of the Supreme Court Bar Council, Advocate Abid Zuberi said FB Ali was a hero of the 1965 war, but he was accused of misusing his office after retirement. “How could a retired person use his office?” he wondered.
He went on to say that Gen Ziaul Haq conducted a military trial of FB Ali, but then he himself released him in 1978.
To this, Justice Mandokhail said Gen Zia did what FB Ali wanted to do.
Justice Mazhar said there were two objections raised over the military courts – military trials are not impartial, and those conducting military trials lack legal experience.
On the question of whether military courts are part of the judiciary, advocate Zuberi said army courts are part of the executive.
“What do they have to do with the executive,” questioned Justice Mazhar. Advocate Zuberi replied that the army was supposed to fight on the frontiers.
Justice Mandokhail said the military’s job is to defend the country.
Justice Mazhar: “Do you accept the military courts. If so, then the results will be very different. Justice Muneeb Akhtar did not write military courts [in the verdict] as judiciary. There is no clarity about the military courts in any verdict of the court.”
Justice Mandokhail said the military court was not mentioned in section 2(d). However, it was written in the section that the trial of an offence would take place, but a forum is not mentioned explicitly. He said, adding that anti-terrorism courts pronounce sentences if evidence against the accused is available.
Justice Mazhar told the counsel to first accept that military courts are part of the judiciary before demanding to separate them from the judiciary. “The armed forces are not part of the judiciary; it is not written in any court decision that the military court is a judiciary,” the judge added.
Justice Mandokhel said that the word court martial has been used in the law but not in the military courts.
Lawyer Zuberi argued that only civilians who are part of the army can be tried in military courts.
In the presence of Article 10A and Article 4, a court martial of civilians is not possible. Under Section 2D, sub-clause 3A of Article 8 does not apply to the accused, he added.
After hearing the arguments, the hearing of the case was adjourned till tomorrow (Thursday).
