Islamabad:

Justice Muhammad Ali Mazhar of the Supreme Court’s constitutional bench observed on Wednesday that military courts were not part of the judiciary, adding that there was no court ruling defined military courts as part of the judiciary.

“Let the military court first be recognized as part of the judiciary and then talk about separating it from the judiciary,” he pointed out.

The comments were made as a seven-judge bench, led by Justice Aminuddin Khan, heard the Intra Court of Justice challenged on October 23, 2023, which handed over a five-judge bench that canceled the military lawsuits for civilians involved in the violence on May 9.

During the case, lawyer Abid Zuberi, who represented the ex-scba officials, claimed that the lawyer had violated insurances given to court.

He pointed out that the court lawyer’s written insurance was referred to in the five-member bench’s decision.

Under his arguments, Zuberi remembered that former military ruler General Ziaul Haq had ordered a military trial for FB Ali in 1978, but later released him. To this, Justice Mandokhail said Gen Zia did what FB Ali would do.

Justice Mazhar said the Army Act provided a complete procedure for military trials, ensuring fundamental rights. However, he noted that “if the procedure was not followed, its mere existence is meaningless.”

Justice Mazhar also noted that there were two key objections to military attempts: their perceived lack of impartiality and the limited legal expertise for those who performed them.

Attorney Zuberi claimed that military courts worked as part of the executive. On this, Justice Mazhar asked: “What is the role of the army? Where does the exercise come into it?” Zuberi replied, “Army job is to defend the boundaries.”

Justice Mandokhail added that the role of the army was national defense.

Justice Mazhar then questioned whether Zuberi considered military courts as part of the judiciary. “If you recognize them as the judiciary, the consequences will be different. If a military court is court, it’s part of the judiciary. Justice Munib did not classify military courts as the judiciary.”

Zuberi reiterated that the Supreme Court’s decisions have found that civilians cannot be divided court for civil offenses. “Military courts are not part of the justice system under the Constitution. They can only try civilians who are part of the military. According to Article 10-A, civilians cannot be warned.” He further argued that under Section 2-D, Article 8 (3-A) does not apply to the defendant.

However, Justice Mazhar pointed out that Article 8 (3-A) includes the term “other persons”, adding that there is no decision that has given clarity on military courts so far.

Zuberi insisted that “Under Article 10-A, military trials cannot be conducted.” Justice Mazhar then asked, “Where does the Nexus determination fit in?”

Justice Mandokhail noted that section 2-D did not explicitly mention military courts, but only says that a trial is held for the crime. “It does not specify which forum will complete the trial,” he said.

Zuberi informed the court that changes had been made to include military lawsuits for attacks on military installations. Justice Hasan Rizvi replied, “These attacks are still happening – there was an attack in Bannu Cantt right yesterday.”