Constitution clearly states executive cannot perform judicial role: Justice Mandokhail
Pakistan
SC postponed hearings on other constitutional cases to focus exclusively on military courts
ISLAMABAD (Dunya News) - 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.
