Military court judges work under relevant authorities, says Justice Mandokhail

• Defence lawyer presents military court records in sealed envelopes.
• Justice Mazhar says probe is held first, followed by formal charges.
• Lawyer says security concerns restrict access for suspects' families.
  

ISLAMABAD: Supreme Court's Justice Jamal Khan Mandokhail on Wednesday said that the jurists conducting military trials operate under the relevant authorities. 

The remarks came during the hearing of an intra-court plea regarding the trial of civilians in military courts.

A seven-member bench constitutional bench, led by Justice Aminuddin Khan and comprising Justice Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarrat Hilali and Justice Naeem Akhtar Afghan, was holding the proceedings.

At the outset of the hearing, Justice Hilali asked whether an investigation took place before the framing of charges. Justice Mazhar responded that investigations were conducted first, followed by formal charges.

Defence ministry's counsel Khawaja Haris added that the law clearly distinguishes between a trial and a fair trial.

Justice Azhar inquired whether an accused in a military trial is provided a state-appointed lawyer if they cannot afford one, to which Haris confirmed that state-funded legal representation was available.

Justice Mandokhail remarked that courts generally considered the accused as the "favourite child" of justice, questioning whether the same applies in military trials. At this, Haris replied that under the Army Act rules, the accused is given full protection.

Justice Mandokhail then said that an accused is considered the “favourite child” of the court, questioning whether the same applies in military courts. The defence ministry’s counsel assured that under the Army Act’s rules, complete protection is provided to the accused.

Justice Afghan, meanwhile, said that as chief justice of Balochistan, he had heard appeals against military court verdicts and that decisions were not issued on blank papers merely declaring an accused guilty or innocent. 

He added that when cases were challenged in high courts, the General Headquarters provided complete judicial records, including evidence and procedural details.

Justice Rizvi then questioned whether the families of civilian defendants or the media had access to military court proceedings. At this, Haris informed the court that while the law mentions access for families and media, security concerns often restrict it.

The judge further asked whether military court judges have prior experience or are appointed without any. He also questioned if a defence officer presiding over a case has prior legal experience and whether a judge advocate present in court could conduct a court-martial. The lawyer confirmed that a judge advocate always sits alongside military judges.

Meanwhile, Justice Hilali raised concerns about the impact of such verdicts on civilians, stating that society is already facing lawlessness.

Justice Mandokhail noted that session judges are appointed after decades of legal experience, while some recent cases show that even decisions by benches of eight judges are challenged by two judges. 

He then asked whether Article 175 of the Constitution provides for military courts. Haris responded that revisiting past military court rulings would be necessary if such a provision were established. He added that military courts exist in several countries and are recognised by constitutional law.

Justice Mandokhail also questioned why narcotics-related cases, fully controlled by the military, require a session judge’s appointment from the chief justice of Pakistan for trials. At this, the lawyer argued that military courts have been legally excluded from Article 175 in all previous judicial rulings.

During the hearing, Justice Afghan directed the defence ministry to present examples of military court rulings beyond the May 9 cases. Haris presented the records in sealed envelopes and distributed seven copies of military court decisions to the seven-judge bench.

Haris urged the court to examine the trial process, saying that before proceedings, accused individuals were asked if they had any objections to the presiding officer, and none had raised any concerns.

Justice Mandokhail, however, remarked that records should be reviewed at the appeal stage, making it inappropriate for the court to assess them at this stage. Justice Aminuddin assured that the Supreme Court would not let the trial be affected.

Meanwhile, Justice Rizvi noted that after reviewing records, the May 9 cases did not appear to fall under state security concerns. He suggested that making case records public could reveal the actions of the accused, allowing the public to judge their conduct.

At this, the defence ministry’s lawyer replied that such decisions rest with the authorities.

Later, six judges of the constitutional bench, except for Justice Hilali returned the trial records to Haris.