Supreme Court Justices Jamal Khan Mandokhel and Naeem Akhtar Afghan have issued a powerful 36-page dissenting note challenging the majority verdict that upheld the trial of civilians in military courts.

The note strongly defends judicial independence and raises serious constitutional and ethical questions about the use of military courts for civilian cases. Both the judges had dissented from the majority decision in the case.

The majority decision, endorsed by five Supreme Court judges, had upheld the federal and provincial governments' authority to try civilians involved in the May 9 and 10 riots in military courts. However, the dissenting judges rejected this view, arguing that it undermines the principles of justice and judicial integrity enshrined in the Constitution.

Justice Mandokhel, supported by Justice Afghan, emphasized that the executive and judiciary are two distinct and independent arms of the state, and warned against blurring this constitutional boundary.

Quoting Islamic teachings and historical precedents, Justice Mandokhel noted, “The Holy Quran and Prophet Muhammad (PBUH) taught the importance of an independent and impartial judiciary. Prophet Umar Farooq (RA) also kept the judiciary separate from the executive.”

He further pointed out that Islamic principles of justice were incorporated into Pakistan’s Objectives Resolution, under which the Constitution has kept the judiciary independent. "Judicial power cannot be given to any executive body," the note stated.

Criticism of military courts

The dissenting judges argued that military officers lack judicial training and experience, and therefore military courts cannot be equated with ordinary courts in terms of fairness and legal standards. "Officers of ordinary courts have judicial experience as well as independence."

“The officers presiding over military courts are experts in military matters, not civilian law,” the note states. “They are not trained to ensure the procedural safeguards guaranteed by the Constitution.”

Also Read: SC sets aside decision against military trials of civilians

The judges also criticized the government's reliance on military courts, stating, “It appears that the federal, Punjab, and Balochistan governments have unfortunately lost faith in the ordinary criminal courts.” They accused elected governments of shifting the burden of politically motivated cases onto military courts, which they called “incomprehensible and regrettable.”

The judges further stated that the federal and provincial governments were relying on military courts in terrorism cases for their own objectives. "Expecting ordinary courts to convict people without evidence would be a violation of fair trial," the dissent note said. "How can a military court punish someone when the prosecution has no evidence or material?"

Flaws in prosecution, not courts

Responding to the argument that military courts are necessary due to the low conviction rate in regular courts, the dissenting note stresses that it's not right to say military courts are established to deal with terrorism cases around the world.

“This does not mean that [civilian] courts do not have the capacity or desire to deliver justice. The issue is not the courts' capacity, but weak prosecutions and unprofessional investigations.” The judges emphasized that the Supreme Court was constantly reviewing the decisions of lower courts and that acquittals were often the result of baseless political cases, not judicial failure.

They cautioned that expecting civilian courts to deliver convictions without solid evidence would violate the right to a fair trial, adding, “How can military courts convict individuals when even the prosecution has no evidence?”

Former CJ Khawaja files review petition

Meanwhile, former chief justice Jawad S. Khawaja has filed a review petition against the Supreme Court’s decision, calling it contradictory and unconstitutional. The petition argued that the apex court bench misinterpreted facts and relied on outdated legal precedents, adding that it did not properly examine the facts of the case and relevant law. He also requested the Constitutional Bench to withdraw the decision of the military courts case.

Justice (retd) Khawaja criticized the reliance on the FB Ali case, which was decided under the now-defunct 1962 Constitution. He argued that military courts established via the 21st Amendment had constitutional backing -- something absent in the current scenario, making the court's reasoning flawed.

"The Supreme Court's decision is a collection of contradictions," the petition stated. "The constitutional bench deprived citizens of fundamental rights in its decision."

He further stated that on one hand, the constitutional bench had declared that fundamental rights were protected in military courts, and on the other, it was stated that the right to appeal should be given to ensure fundamental rights.

Impact on May 9–10 cases

The petition also warns that the court’s observations on the May 9 and 10 incidents could prejudice ongoing trials and undermine fair judicial proceedings. It criticized the inclusion of the attorney general's views on pending cases as part of the judgement.

“The Supreme Court has a responsibility to correct any legal errors once identified,” the former chief justice stressed.

On May 7, the Supreme Court had accepted intra-court appeals challenging an earlier verdict that had declared the military trials of civilians unconstitutional, effectively setting aside the decision by a majority of five to two.

A seven-member larger bench of the apex court, headed by Justice Aminuddin Khan, delivered the reserved verdict, overturning the October 2023 ruling by a five-member bench that had restrained the military from trying civilians in connection with the May 9 violence under the Pakistan Army Act.

The majority of the judges — five out of seven — ruled in favour of the appeals, thereby allowing military courts to proceed with trials of civilians accused of attacking military installations.

The bench was constituted to hear intra-court appeals filed by the federal government and other petitioners seeking to restore military trials for individuals accused of inciting or participating in the May 9 riots, which followed the arrest of former prime minister Imran Khan.

According to the short order, the apex court ruled that the earlier judgement declaring the military trial of civilians as unconstitutional "stands nullified."