The debate over military trials for civilians has reached the Supreme Court, where lawyer Hamid Khan strongly opposed the practice. He argued that civilians cannot be tried in military courts without a constitutional amendment. A Supreme Court constitutional bench, led by Justice Aminuddin Khan, is currently hearing the case.
Hamid Khan: Military Courts Need Constitutional Amendment
During his arguments, Hamid Khan referenced past cases, particularly the Rawalpindi Bar case, which challenged the 21st Amendment related to military courts. He asserted that military trials of civilians violate constitutional rights and cannot be established without proper amendments.
Justice Muhammad Ali Mazhar asked about the appeal process under the 26th Amendment. Khan responded that writ petitions could be filed in the High Court, but their scope would remain limited. He further emphasized that the Constitution does not provide for military courts, pointing out that while past constitutions had such provisions, the 1973 Constitution does not.
Judicial Oversight and Right to Fair Trial
Justice Jamal Khan Mandokhail questioned whether it mattered where a trial took place, suggesting that punishment should be impartial. However, civil society lawyer Faisal Siddiqui countered that military and civilian courts operate differently. He stressed that military trials lack independent oversight, making them fundamentally different from civilian courts.
Justice Muhammad Ali Mazhar then asked how many individuals had been released from military custody. Faisal Siddiqui stated that 105 people were initially accused, with 20 released. The Additional Attorney General added that a further 19 were freed, leaving 66 still in custody.
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Legal Challenges to Military Trials
Justice Aminuddin Khan questioned whether the Anti-Terrorism Court (ATC) had played a role in transferring civilians to military courts. Faisal Siddiqui argued that the law does not permit such transfers, and the issue is not just who was selected for military trial, but whether the law allows it at all.
Justice Hassan Rizvi asked whether police investigations were slower compared to military proceedings. Siddiqui responded that the real issue was not the speed of investigations but the unlimited power granted under Section 94 of the Army Act, which allows military authorities to request custody of civilians without judicial oversight.
Power of the Anti-Terrorism Court
Justice Jamal Mandokhel asked whether the Anti-Terrorism Court could reject a military trial request. Siddiqui confirmed that it had the authority to refuse, but the court did not issue any notice to the accused before transferring them.
Justice Naeem Afghan noted that the commanding officer’s request cited the Official Secrets Act as the reason for the handover. However, Siddiqui argued that a decision on court-martial should have been made before transferring the accused, not after.
What’s Next?
The Supreme Court has adjourned the hearing, with arguments set to continue. The case highlights a critical constitutional debate over civilian rights, judicial oversight, and the limits of military authority in legal proceedings.
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