The head of the Supreme Court of Pakistan’s constitutional bench has claimed that laws cannot be canceled solely because of their abuse, which emphasizes the principle that incorrect application of legal provisions does not make them constitutional.

The comments came under an intra-cart appeal on the trial against civilians by military courts.

The case heard by a seven-member constitutional bench led by Chief Justice Amin-out-Din Khan is about the controversial question of civilians being tried by military courts for alleged crimes.

During the hearing, justice Jamal Mandokhel raised critical questions about the jurisdiction of military courts, asking whether civilians who are not part of the armed forces can be exposed to military lawsuits simply because the nature of their alleged crimes is considered serious.

He asked, “Can a person who is not part of the military be prosecuted by a military court simply based on the crime they are accused of?”

Senior lawyer Salman Akram Raja, who represented the petries, argued hard against the military trial against civilians.

Raja emphasized the importance of protecting fundamental rights and claiming that military courts should not have authority to try civilians unless their actions directly threaten national security or the armed forces.

He quoted Landmark FB Ali case from 1962, when the Supreme Court gave up that civilians could only be tried in military courts if their alleged activities were directly linked to issues of national defense.

In response, justice Mandokhel questioned the extent of the powers awarded to military courts in accordance with the Pakistan Army Act.

He asked Raja to clarify whether the law allows military courts to try civilians for acts not related to military affairs or national security, focusing on the severity of the crime rather than the status of the defendant as a civilian or military member .

Raja maintained that the right to a fair trial is a cornerstone of the Constitution and that military courts should not be used as a replacement for civil courts, especially when the case does not involve the armed forces.

He argued that previous judgments have emphasized the need for civil litigation, with military courts reserved for cases involving direct military personnel or national defense issues.

Justice Amin-out-Din Khan added that although the abuse of a law is actually unfortunate, it should not serve as a basis for declaring that the law is constitutional.

He reminded the lawyer that laws are designed to serve the wider public interest, and any cases of abuse should be treated through corrective measures rather than through blanket cancellations.

He further elaborated that laws should be evaluated according to their overall purpose and not just in isolated cases of their abuse.

The hearing continued with discussions as to whether military courts have jurisdiction to try civilians for non-military crimes and whether such litigation violates constitutional rights.

While the case remains in progress, the bench expressed that challenging the legality of military litigation based on the potential of abuse would not suffice without demonstrating that the law violates constitutional guarantees of fundamental rights.

Justice Mandokhel also pointed out that the courts had in previous cases made a decision in favor of protecting fundamental rights, including the right to a fair and impartial trial.

He warned that any extension of the jurisdiction of military courts should not come at the expense of civil rights.

The court also dived into the entanglements of military court attempts in comparison with civilian litigation. Justice Mohammad Ali Mazhar raised concerns about whether the Army Act applies to civilians involved in serious crimes such as terrorism, while Justice Hassan Azhar Rizvi discussed the potential role that foreign agencies have awarded civilians to act against the state.

Salman Akram Raja opposed to pointing out that in countries such as India, military trial procedures offer a fairer system, including the provision of appeals in a civil court.

He argued that military litigation in Pakistan, where appeals are heard by the army chief, lacks transparency and justice, leaving civilians in a clear disadvantage.

Justice Mandokhel noted that the trial against civilians of military courts raises deep questions about the relationship between the civil and military legal systems of Pakistan.

He questioned whether such litigation would be justified in cases where the defendant is not involved in any military -related violation.

Justice Amin-out-Din Khan ended by reminding all parties involved that the primary focus should be on maintaining constitutional principles and ensuring that justice is served fairly.

He noted that although abuse of statutory provisions is a valid concern, it should not lead to the settlement of laws serving a greater purpose, especially when they are in line with national security concerns.

The bench postponed the hearing until Monday, February 9, 2025, when Salman Akram Raja continues his arguments.