Military courts case: Constitutional Bench calls Constitution supreme, not Parliament

Islamabad: During the hearing of the case related to the trials of civilians in military courts in the Constitutional Bench of the Supreme Court, Justice Jamal Mandokhel remarked that it is said that Parliament is supreme, but in his opinion, the Constitution is supreme.

A seven-member Constitutional Bench headed by Justice Aminuddin Khan heard the case related to the trials of civilians in military courts. The bench includes Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.

Defense Ministry lawyer Khawaja Haris, while initiating the arguments, took the position that the basis of the court decision is Article 8(5) and 8(3), the two sub-articles are completely different, and cannot be combined.

Justice Jamal Mandokhel remarked that this point of yours was understood yesterday, now let's move on and complete the remaining arguments.

Justice Muhammad Ali Mazhar asked Khawaja Haris to start from the paragraph he was reading from Justice Munib's judgment, Article 233 protects fundamental rights.

Justice Jamal Mandokhel said that even according to the Constitution, rules are suspended, not terminated, and rights cannot be suspended even according to Article 5.

Khawaja Haris stated that Article 233 has two parts, one for the armed forces and the other for civilians.

He read out the decision declaring the military trial of civilians null and void and said that it had been decided in the FB Ali case that civilians could also be tried in a military court. Articles 8(3) and 8(5) were misinterpreted in the majority decision.

Justice Jamal Mandokhel said let's see whether we agree with you on this or not.

Lawyer Khawaja Haris added that the FB Ali case was said to be different based on misinterpretation. FB Ali was tried after his retirement when he was a civilian. The verdict said that he was not retired when the crime was committed, so his case is different.

Justice Jamal remarked that in the present case, the accused of May 9 do not belong to the armed forces. Nowadays, there is a term of ‘ex-servicemen’. They were not even that, let us use the term ‘civilians’ only.

Justice Jamal questioned whether civilians can be tried under the Army Act or not? Was it only for specific citizens? To which Khawaja Haris said that the general impression is different. Justice Jamal Khan said that let alone the general impression, tell us whether civilians can be tried or not.

Justice Musarat Hilali asked that when the Army Act comes, do all fundamental rights get suspended? Justice Muhammad Ali Mazhar asked what international practice is there in this, do you have any examples of it? To which Khawaja Haris said that he has examples and will discuss them later.

Justice Muhammad Ali said that there is a law in the first schedule as well, you cannot tamper with it. To which Khawaja Haris said that it is also important that the current law is applicable.

Justice Jamal added that many of our youth are martyred, will there be a military trial for those who attack them? To which Khawaja Haris said that in this case, we are not looking at which people can be tried in the future.

Justice Naeem Akhtar Afghan, while talking to Khawaja Haris, said: “It seems that your preparation is not complete. The five-member bench has repealed some provisions of the Army Act. If we also keep these provisions null and void, then a civilian cannot be tried in special courts. If we reach any other conclusion, we will have to decide which civilian can be specially tried”.

Justice Naeem Afghan further said that now the Official Secrets Act has also been amended in 2023. Tell us in the light of this amendment. Yesterday, Justice Jamal Mandokhel asked the question by giving the example of a military post.

Justice Jamal said that the Parliament undoubtedly has the authority to make laws and determine the crime. If the Parliament wants, it can make laws tomorrow. Looking askance is a crime. It is also the constitutional responsibility of the Parliament to establish a court where the trial of this crime will take place. The Constitution of Pakistan gives this authority and responsibility to the Parliament. It is said that the Parliament is supreme, I think the Constitution is supreme.