Justice Jamal Khan Mandokhail said on Wednesday that all five judges of the Supreme Court were unanimous in their decision that civilians cannot be tried in military courts.
He made these remarks during the hearing of an intra-court appeal challenging the trial of civilians in military courts. Justice Mandokhail is part of a seven-member constitutional bench overseeing the appeal, which also includes Justices Amin-ud-din Khan, Muhammad Ali Mazhar, Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
During the proceedings, Advocate Faisal Siddiqui argued that there had been three separate decisions by a five-member bench regarding military courts.
He pointed out that Justices Ayesha Malik, Muneeb Akhtar, and Yahya Afridi had written individual decisions, but all judges agreed on the core observations. Siddiqui emphasized that when judges’ decisions align but their reasoning differs, all the reasons are considered part of the overall decision.
However, he maintained that all justices were in agreement on the key issue that civilians should not be tried under military jurisdiction.
Siddiqui explained that when different judges write separate opinions in the same case, their reasoning collectively forms part of the final verdict. He dismissed arguments suggesting that the decisions were divided.
Justice Muhammad Ali Mazhar pointed out that the justices had written detailed rulings rather than supplementary notes.
Justice Mandokhail reinforced the argument by stating that all five judges were in consensus against military trials for civilians.
A key point of contention in the case is whether anti-terrorism courts (ATCs) had formally authorised the transfer of civilian suspects to military custody.
Justice Naeem Afghan questioned whether there was an official court order permitting such transfers.
Siddiqui responded that while some transfer orders existed, they did not include a clear justification.
He further argued that a suspect could only be handed over to military authorities after formal charges had been framed against them.
The lawyer stressed that transferring civilians to military custody based solely on a police report or an initial complaint was legally questionable.
Siddiqui asserted that the Supreme Court could declare civilian military trials unconstitutional without necessarily striking down sections of the Army Act.
He said the court had previously ruled in similar cases that a law could remain in place while certain applications of it were deemed unlawful.
Justice Muhammad Ali Mazhar also commented on the limitations of appeals in military court cases, noting that those already tried under military jurisdiction could not have their cases reheard in civilian courts.
He emphasised that military courts could not sentence individuals under the Official Secrets Act and then refer the case back to anti-terrorism courts.
Justice Mandokhail remarked that the Army Act did not have a formal provision for registering First Information Reports (FIRs) against civilians.
Siddiqui agreed and argued that before any civilian could be placed under military custody, a magistrate should review the case and decide whether it should proceed under military or anti-terrorism law.
The Supreme Court bench continued its deliberations on the case, with Justice Aminuddin Khan stating that courts must determine their own jurisdiction before proceeding with any case.
Siddiqui warned that if the right to appeal was limited in these cases, it could set a dangerous legal precedent.
He also dismissed the argument that because no objections were raised initially, the court could overlook jurisdictional concerns.
The court adjourned the hearing, with further arguments expected in the next session.
During yesterday’s hearing, the Supreme Court of Pakistan referenced former army chief General (Retd.) Qamar Javed Bajwa’s service extension while hearing a case on military trials for civilians, reigniting debate over past legal precedents.
