A seven-member bench of the Supreme Court - headed by Justice Aminuddin Khan - on Tuesday questioned whether any member of the National Assembly had ever raised objections to the Army Act or introduced a private bill against it.
During the proceedings, Justice Aminuddin Khan inquired whether lawmakers had ever voiced concerns in parliament about civilians being subjected to military trials.
"Has any member of the assembly ever introduced a private bill against the Army Act?" he asked.
PTI founder’s lawyer, Uzair Bhandari, argued that military courts lack jurisdiction over civilians and that only general courts can conduct trials on criminal provisions. He maintained that fundamental rights were not fully available even under the 1962 Constitution, enacted during Ayub Khan's era.
Justice Jamal Khan Mandokhel sought clarification on the legal basis for trying civilians under military laws, asking how the Army Act justified its applicability to civilians.
"How has the connection of civilians been established under Section 21D?" he questioned.
Justice Hassan Azhar Rizvi referred to past cases, including the Muharram Ali case and Rawalpindi Bar case, to highlight instances where terrorism-related offenses were linked to military courts. "If military installations were attacked, would their security be solely under the military's control?" he asked.
Bhandari contended that 103 civilians were currently facing trials in military courts, citing media reports and available footage.
Following a brief recess, Bhandari resumed his arguments, asserting that military trials were determined by the status of the accused rather than the nature of the crime. He pointed out that, according to the Constitution’s Article 8(3), armed forces personnel do not enjoy the same fundamental rights as civilians.
Justice Musarrat Hilali, however, referred to the amendment in the Army Act, which allows the trial of civilians if a nexus to military offenses is proven. "The trial is conducted based on the crime, not just the accused's status," she remarked.
Justice Muhammad Ali Mazhar questioned whether the army could exercise judicial powers over civilians. "You argue that the army cannot wield judicial authority. If so, it cannot do so for anyone," he observed.
The discussion also touched upon international examples. Justice Aminuddin Khan mentioned India's legal framework, where an independent tribunal hears appeals against military trials. Justice Muhammad Ali Mazhar cited the case of Indian national Kulbhushan Jadhav, where Pakistan introduced special legislation granting him the right to appeal following the International Court of Justice's ruling.
Justice Naeem Akhtar Afghan referred to the extension of the former army chief's tenure, noting that no law previously existed for such an extension. "It was only after Supreme Court instructions that Parliament legislated on the matter," he recalled.
Justice Aminuddin Khan remarked on the rapid legislative response at the time. "Everyone was sitting together for the notification, and one notification followed another. This was our situation," he said.
Bhandari concluded by referencing past legal precedents, claiming that the trial process remained flawed. "Fair trial is still a distant reality—military trials are merely a formality on paper," he asserted.
The hearing was adjourned and will resume on Tuesday.
