Why is military court’s case being dragged, asks SC judge

ISLAMABAD: Supreme Court judge Jamal Khan Mandokhail on Thursday questioned why the military court’s case was being unnecessarily delayed.

A seven-member Constitutional Bench of the apex court, headed by Justice Amin-ud-din Khan, heard the Intra-Court Appeals (ICAs) filed by the federal government and the Ministry of Defence against its earlier judgement declaring the trial of civilians in military courts unconstitutional.

The court adjourned the hearing until Friday after the counsel for the Ministry of Defence, Khawaja Haris, failed to conclude his rebuttal arguments for the second consecutive day.

During the hearing, Justice Mandokhail inquired about Attorney General Mansoor Usman Awan. Additional Attorney General (AAG) Chaudhry Aamir Rehman informed the court that the attorney general required two to three more days to present his arguments.

“Is this a joke? Why is the case being unnecessarily delayed?” Justice Mandokhail asked the AAG, further questioning whether there was no intention to conclude the case.

Justice Musarrat Hilali reminded the AAG that the attorney general himself had earlier stated he would only need 10 minutes. “The discussion was only about whether or not the right to appeal should be given,” she remarked.

Aamir Rehman, however, submitted that the attorney general would only appear if the court directed him to do so, as Khawaja Haris was already representing the federation. Justice Mandokhail responded, “If the attorney general himself has handed over his right to Khawaja Haris, then why should we hear him?”

Earlier, the court asked Khawaja Haris how much more time he needed to conclude his rebuttal. Haris replied that he still had to address questions raised by Justices Musarrat Hilali and Jamal Mandokhail, requiring an additional 30 to 40 minutes.

At this, Justice Hilali remarked that if the delay was due to her questions, she would withdraw them. Justice Mandokhail similarly stated that he would retract his question.

Meanwhile, Khawaja Haris, while presenting his rebuttal, argued that military courts were established under the law and that fair trials were conducted there. He cited the Liaquat Hussain case, in which the Supreme Court had ruled that civilians could be tried in military courts.

He further contended that established procedures and fair trial guarantees were followed in military courts, with officers taking a formal oath to ensure justice.

Justice Mandokhail, however, directed Haris to refer to Article 175, stating it was the only constitutional provision justifying the courts authority. Haris responded that in Mehram Ali and Liaquat Hussain, it had been held that court-martial proceedings did not fall under Article 175. He added that even in the judgement under appeal, it was acknowledged that military courts were not governed by Article 175. Advancing his argument, Haris submitted that under Article 142, the federal government had the authority to legislate on matters in the Federal Legislative List, including military courts—a power that existed under the 1956 and 1962 Constitutions as well.

Justice Mandokhail remarked, “The real question is whether military courts can be considered courts at all. If they can, then read Article 175 again.” Haris maintained that military courts were indeed courts, exercising special jurisdiction in criminal trials. Justice Mandokhail then asked how an accused could prove they were denied a fair trial if the record was not provided. Haris replied that none of the 105 civilians tried in connection with the May 9 incidents had complained of unfair proceedings.

The court adjourned the hearing until Friday, directing Khawaja Haris to conclude his arguments. It also instructed the attorney general to commence his arguments on April 28, as the bench would not be available before then.