Trying civilians in military court not a ‘matter of ego’: SC – Pakistan

• Trial is held when question of country’s security arises, defence ministry tells CB
• Justice Aminuddin agrees with ministry’s stance on Oct 23, 2023 verdict
• Is military court akin to ordinary civilian court, asks Justice Hilali
• Counsel questions legitimacy of super tax

ISLAMABAD: The ministry of defe­n­­ce on Thursday told the Constitutional Bench (CB) that subjecting civilians to military trials was not a matter of ego for the army but became necessary when it comes to the defence and security of the country.

Headed by Justice Aminuddin Khan, the seven-judge CB had taken up a set of 38 intra-court appeals (ICAs) moved by the federal and provincial governments as well as the Shuhada Forum Balochistan etc against the SC’s Oct 23, 2023 verdict.

Justice Aminuddin said the court was in agreement with the stand taken by the ministry that the SC’s Oct 23 decision to declare Sections 2(1)(d)(i) and (ii) of the PAA as null and void was not correct.

Justice Jamal Khan Mandokhail obser­ved that the constitution was supreme and parliament was also subject to the constitution. He reiterated that the army act was meant only to maintain discipline within the ranks of the army.

Defence Ministry counsel Khawaja Haris Ahmed, however, contended that the jurisdiction to determine where the PAA’s provisions would be applied rests only with parliament and was not the job of the judiciary. He said that judiciary should look at the constitution as a whole in its overall perspective, instead of considering certain clauses of the law.

When Justice Mandokhail wondered if parliament could add more clauses to the PAA to bring civilians in the ambit of the law, the counsel replied this question was not before the court.

Justice Mandokhail observed that Article 8(3)A of the constitution had exempted the enforcement of fundamental rights, but the question remains whether this exemption was only meant for the armed forces or could also be extended to civilians.

The counsel stated that Article 8(3)A was only meant for the armed forces, but civilians could be brought into it under certain circumstances.

Justice Musarrat Hilali regretted that she was not getting the answer to her question despite the fact that the case was going on for the last one year. The judge asked: do military courts fall under the ambit of Article 175(3), which asks for the separation of executive from judiciary, and whether the military court is akin to the ordinary civilian court.

The counsel said he will answer it after satisfying the questions asked by other judges.

The CB then postponed further proceedings to April 7.

Super tax

Meanwhile, senior counsel Makhdoom Ali Khan told a five-judge CB, hearing the imposition of the super tax, that the Supreme Court had earlier held that when a levy was not imposed as a common burden or implemented for a specific purpose then it cannot be called a tax.

Headed by Justice Aminuddin Khan, the CB had taken up a number of challenges by different taxpayers assailing the constitutional vires of the amended Section 4C of the Income Tax Ordinance, 2001, which had been implemented for the tax year 2023.

Mr Makhdoom, who represents various companies, cited the latest judgement in the Income Support Levy case. This verdict, he stated, is not a standalone judgement since there were several other cases in which the apex court had expressed the same view.

In order to qualify for a tax on income under Entry 47 of the Fourth Schedule of the Constitution, it must be for a general purpose and imposed as a common burden. The super tax was introduced by the PML-N government in 2015 which was applied to wealthy individuals, associations of persons, and companies earning above Rs500 million.

The government levied a tax rate of 4 per cent on the income of banking companies and 3pc on other sectors, which is still intact.

Published in Dawn, March 14th, 2025