Executive cannot assume judicial role: SC
• Civilians can be tried by military if they commit offence listed in Army Act, observes Justice Mazhar
• Bench asks Punjab govt to explain why military convicts are not being treated in line with jail manual
ISLAMABAD: The Supreme Court on Tuesday saw a healthy debate over who could be prosecuted under the Pakistan Army Act (PAA) 1952, with the constitutional bench questioning how a branch of the executive could discharge judicial functions.
“The concept of trichotomy of powers in the Constitution is crystal clear. The Constitution is also clear that the executive cannot assume the role of the judiciary and this remains the basic constitutional question in the military court case,” Justice Jamal Khan Mandokhail observed during the hearing of intra-court appeals (ICAs) filed against the Oct 23, 2023 order, nullifying the trial of civilians by military courts involved in the May 9, 2023 violence.
However, representing the defence ministry, senior counsel Khawaja Haris Ahmed argued that the executive could decide a matter if no other forum was available.
At this, Justice Mandokhail reiterated that since a legal forum existed in the form of anti-terrorism courts (ATC), the executive could not assume the role of judge, adding that the Pakistan Army Act (PAA) 1952 was limited to members of the armed forces.
The counsel, however, maintained the Act could be extended to various categories, adding that when a citizen interferes in the performance of the duties of armed forces, the PAA becomes applicable.
This point was endorsed by Justice Muhammad Ali Mazhar, who noted civilians could not face a military trial for merely standing near an army checkpoint. But they certainly could be tried if they committed an offence listed under PAA.
When the counsel contended that the SC had previously declared civilians could be court-martialed under the PAA, Justice Mandokhail asked who the affected party was in the present case that had filed the appeal.
When the counsel replied that the appeal had been filed on behalf of the defence ministry, Justice Mandokhail noted that the ministry was an extension of the executive and questioned whether, if a crime were committed against the executive, the executive itself could assume the role of a judge to decide the matter.
Convicts’ treatment in jail
During Tuesday’s hearing, the constitutional bench directed the Punjab government to explain why individuals recently convicted by military courts for their involvement in the May 9 attacks on military installations were not being treated in line with the jail manual.
He said while the SC had been gracious in allowing military courts to deliver verdicts with varying sentences for the accused, following their convictions, the prisoners were being held in a high-security zone and denied the rights guaranteed under the prison manual.
On Dec 13, Additional Attorney General (AAG) Chaudhry Aamir Rehman assured the constitutional bench that the convicts would be dealt with in accordance with the jail manual. Following the assurance, the bench ordered that sentences for those under custody and facing trial before military courts be announced, and that remissions admissible to such individuals be granted, with persons eligible for release after remissions to be set free immediately.
However, the bench also stipulated that the announcement of the judgement would be subject to the final determination of these appeals and without prejudice to the rights of the convicts.
Consequently, the military courts sentenced several civilians to jail terms ranging from two to 10 years in connection with the attacks on military facilities.
One of these convicts, Hassan Niazi, the son of Hafeezullah Niazi, was sentenced to 10 years of rigorous imprisonment by the military courts. Later, on Jan 3, the military courts granted pardons to 19 convicts involved in the May 9 riots.
When Mr Niazi drew court’s attention to the non-provision of rights under the jail manual, Justice Mazhar asked why these under-trial prisoners, who had already been punished, were not being treated as outlined in the prison manual. Mr Niazi said sentences had been handed down to various prisoners, but detailed reasons had yet to be provided.
This information surprised Justice Musarrat Hilali, who questioned whether no detailed reasons had been given for the sentences. The hearing was then postponed until Wednesday.
Published in Dawn, January 8th, 2025