Former Chief Justice of Pakistan, Jawwad S. Khawaja, has taken a significant step by filing a petition in the Supreme Court challenging the trials of civilians through military courts.
The petition, filed under Article 184(3) of the Constitution, names the Federation of Pakistan, law secretaries, defense secretaries, and provincial chief secretaries as respondents.
Details and Aim of the Petition
In the petition, the former chief justice emphasizes that it does not aim to support or criticize any political party or institution. Instead, it raises a crucial constitutional question regarding fundamental rights that must be addressed in the current circumstances.
Justice Khawaja clarifies that he has no personal interest in the case and seeks relief for the benefit of all citizens, regardless of their political affiliations. The petition, submitted by his counsel Khawaja Ahmad Hosain, calls on the apex court to declare the court martial of civilians by military courts as unconstitutional when ordinary courts are functioning.
Additionally, the petition seeks a declaration that Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act 1952 are inconsistent with the fundamental rights enshrined in the Constitution and should be voided.
The former chief justice further requests that the respondents be directed to maintain and provide a list of all civilians in military custody, along with details of their detention locations. Furthermore, it seeks a declaration that any proceedings against civilians are unlawful and urges their transfer to competent civilian authorities for appropriate proceedings in ordinary criminal courts.
Interpretation of Pakistan Army Act 1952
According to the petitioner, the Pakistan Army Act 1952 is intended to maintain internal discipline within the armed forces and does not extend to civilians when ordinary courts are functioning.
He argues that the trial of civilians by military courts, particularly when the armed forces are called to aid civil power, goes against Article 245 of the Constitution as it displaces civil power instead of aiding it.
The petitioner highlights that the military, part of the executive branch, cannot conduct trials as judicial power is exclusively vested in the judiciary. Moreover, the trial of civilians by military courts infringes upon Article 175(3) of the Constitution and goes against the principle of separation of powers, as stated in the petition.
