Staff Report
ISLAMABAD: Justice Jamal Mandokhail on Tuesday remarked that the constitution is explicit that the executive cannot play the role of the judiciary.
Justice Mandokhail observed during the hearing of the military courts case in the Supreme Court’s constitutional bench that the division of powers in the constitution is very clear. The Supreme Court raised critical constitutional questions about the role of military courts in trying civilians.
Justice Mandokhail, part of the seven-member constitutional bench led by Justice Aminuddin Khan, emphasised that the separation of powers outlined in the constitution was explicit, and the executive could not act as the judiciary.
The court postponed hearings on other constitutional cases, including electoral rigging allegations, to focus exclusively on the military courts’ issue.
Khawaja Haris, representing the Ministry of Defence, began his arguments by citing past Supreme Court rulings that allowed civilians to be court-martialled under military jurisdiction.
However, Justice Mandokhail questioned whether the executive could act as judge, especially when existing legal forums, such as anti-terrorism courts, were available. He stressed that such actions could infringe on the constitution’s Article 175, which delineated judicial powers.
Justice Mandokhail further probed whether a citizen forfeits their fundamental rights upon association with the military. He cited a scenario, which Khawaja Haris later called as hypothetical, that if mere standing near to a military checkpoint could lead to a trial in a military court.
Justice Musarrat Hilali replied to Khawaja Haris that this was the most relatable scenario in this case.
To this, Justice Muhammad Ali Mazhar clarified that civilians would only face military trials if they committed offences explicitly outlined under the Army Act. He observed that standing near a checkpoint, without committing a military offence, would not warrant a court-martial.
Earlier, Justice Jamal Khan Mandokhail criticizing the role of state institutions in political affairs said instead of performing constitutional duties; they are involved in “political engineering”.
A three-judge bench comprising Justice Mandokhail, Justice Athar Minallah and Justice Malik Shahzad Ahmad Khan on Friday heard a murder case. The bench ordered the police to arrest murder suspect Ishaq and hand him over to jail authorities.
During the proceeding, Justice Minallah remarked; “This case has been pending in the Supreme Court since 2017, while the state is busy in toppling and forming governments”.
All institutions are chasing political opponents. This situation would be different if the Constitution is implemented, he said.
