— Mandokhel remarks the entire case concerning military courts revolves around Article 8
— How can a person not in the armed forces be brought under its discipline, argues Mandokhel
ISLAMABAD: Supreme Court (SC) Justice Jamal Khan Mandokhel on Thursday raised concerns over the legitimacy of trying civilians under the armed forces’ disciplinary framework.
His remarks came as the court heard the intra-court appeals against military courts’ decisions.
The case was heard by a seven-member constitutional bench, led by Justice Aminuddin Khan.
The bench included Justices Jamal Khan Mandokhel, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Naeem Akhtar Afghan, Musarrat Hilali, and Shahid Bilal Hassan, who collectively examined the validity of military court proceedings involving civilians.
During the hearing, federal government lawyer Khawaja Haris argued that the military courts case had two parts: one declaring sections of the Army Act null and void, and the other regarding the custody of the accused in military courts.
Justice Mohammad Ali Mazhar asked, “Did the five-member bench declare the provisions of the Army Act in conflict with Article 8 (fundamental rights of citizens)? What justification was provided in the decision for the Army Act provisions being in conflict with Article 8?”
Justice Jamal Mandokhel remarked that the entire case concerning military courts revolves around Article 8, stating, “How can a person not in the armed forces be brought under its discipline?”
Khawaja Haris responded by asserting that if the law permits, discipline will apply.
Justice Jamal Mandokhel explained that a person in the Army will be subject to military discipline, a person in the Agriculture Department will follow its discipline, and if a person is not in any department, how can military discipline be applied to them? Is it not a violation of Article 8 to subject an unrelated person to military discipline and strip them of their fundamental rights?
Khawaja Haris argued that in specific situations, civilians can also be subjected to the Army Act, and fair trial provisions (Article 10A) exist even in military trials.
Justice Mohammad Ali Mazhar mentioned that in the cases of FB Ali and Sheikh Riaz Ali, the Army Act provisions were declared void by four judges. Khawaja Haris raised the point that the court did not have the authority to nullify the Army Act provisions.
Justice Jamal Mandokhel remarked that under such circumstances, if anyone were to provoke, could the Army Act be applied to them? Has the Army Act rendered sections of Article 8 of the Constitution ineffective? He added, “If the President’s House is attacked, the trial would take place in an anti-terrorism court. But if Army property is attacked, the trial would be in a military court.”
Khawaja Haris responded that this decision was made by the legislators through lawmaking.
Justice Jamal Mandokhel questioned, “If a soldier kills his officer, where will the case be tried?” Khawaja Haris replied that such a case would go to a regular court.
Justice Jamal Mandokhel further remarked, “The concept of cantonments was first introduced by Hazrat Umar Farooq (RA), who, due to strict discipline, kept the military separate from the public. The Constitution’s Article 8 mentions Army laws in terms of their discipline. The military’s discipline remains intact, and may Allah preserve it. If civilians are included in military discipline, God forbid, it could lead to disaster. A case of a soldier killing another soldier is tried in a regular court. An attack on military installations is a crime under the Anti-Terrorism Act.”
Justice Musarat Hilali also clarified that a soldier killing another due to personal grievances is different from an attack on the military, which involves national security concerns.
The Supreme Court has adjourned the hearing of the military court case until Friday, December 13, and has sought details of the FIRs from May 9 and 10.
