ISLAMABAD: Former chief justice of Pakistan Jawwad S Khawaja on Tuesday filed a petition in the Supreme Court challenging the trials of civilians through military courts.
He filed the petition under Article 184(3) of the Constitution, making the Federation of Pakistan through the law and defence secretaries, provincial chief secretaries as respondents.
The former chief justice submitted that the instant petition does not seek to support or attack any political party or institution, adding that it raises an important constitutional question involving fundamental rights that requires adjudication in the present circumstances.
“The petitioner has no personal interest in this case and the relief sought is for the benefit of all citizens regardless of political affiliation,” Justice Khwaja submitted.
Filed through advocate Khwaja Ahmed Hosain, the former CJP prayed the apex court to declare that when ordinary courts are functioning, court martial of civilians by military courts is unconstitutional.
Similarly, he prayed the court to declare that Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act 1952 are inconsistent with the fundamental rights conferred by the Constitution and are void and struck down.
The former chief justice further prayed the apex court that the respondents be directed to maintain and furnish a list of all civilians in military custody together with details of where they are being detained.
And to declare that any proceedings against civilians are unlawful and direct that such civilians be transferred to the competent civilian authorities for appropriate proceedings before ordinary criminal courts.
The petitioner submitted that the Pakistan Army Act 1952 is meant for maintaining the internal discipline of the armed forces and cannot extend to civilians when the ordinary courts are functioning.
He further submitted that the trial of civilians by military courts when the armed forces are called in aid of civil power is contrary to Article 245 of the Constitution as it displaces civil power and does not ‘aid’ it.
“The military, as part of the executive, cannot undertake trials as judicial power can only be exercised by the judiciary while the trial of civilians by military courts also infringes upon Article 175(3) of the Constitution and is contrary to the separation of powers”, the petitioner submitted.
