ISLAMABAD: The Constitutional Bench of the Supreme Court resumed hearing of the case related to trial of civilians in military courts. The seven-member constitutional bench headed by Justice Aminuddin Khan presided over the hearing.
Justice (retd) Jawad S Khawaja’s lawyer Khawaja Ahmed Hussain resumed his arguments, saying that civilians cannot be court martialed under any circumstances. He said, “The procedure of military courts is contrary to the requirements of fair trial.”
He said that five judges of the Supreme Court did not agree with the transparency of trials in military courts. In response to this Justice Hassan Azhar Rizvi asked the counsel to differentiate between a common citizen and one who is involved in terrorism activities.
Khawaja Hussain agreed to the point raised by the bench, but said that “If court martial of civilians was possible, then the 21st Amendment would not have been necessary.” He said that if the current bench agrees to the military trial of civilians, then the court should in fact be saying that the 21st amendment was unnecessary.
Justice Rizvi asked, “In the 21st Amendment, some crimes were included in the Army Act”. Khawaja Hussain responded, “If court martial was possible with the amendment to the Army Act, then a constitutional amendment would not have been necessary.”
The counsel argued that the military trial is against the due process, since there is no concept of bail in such trials. To this Justice Rizvi responded that if the requirement of speedy justice is fulfilled then the point of bail becomes moot. “If the decision is made within 15 days, what difference will it make if there is bail or not?” Justice Rizvi said.
Khawaja Hussain answered, “Appeals in military courts do not go to an independent forum nor do the accused get a lawyer of their choice.” He quoted the Brigadier (retd) Farrukh Bakht Ali case [FB Ali case] and said that he was accused of plotting a war against the country and inciting the army to revolt.
“FB Ali’s court martial was conducted by then-Major General Zia-ul-Haq in 1974, on the charges that FB Ali had tried to overthrow the elected government of Zulfikar Ali Bhutto. Zia-ul-Haq, who conducted the court martial, was promoted and became the army chief. What happened after that is the history of this country,” Khawaja Ahmed Hussain said.
Justice Muhammad Ali Mazhar said, addressing the counsel, “You should limit your arguments to whether the central decision was correct or not.” Justice Rizvi added, “You gave the example of Sheikh Liaquat Hussain’s case. During that time the civilians were not fighting the army. The battle was with terrorism at that time.”
Justice Jamal Khan Mandokhail added to Justice Rizvi’s point and said that in the 21st Amendment, political parties were kept out, adding, “The only question before us now is that to whom will the Army Act be applicable?”
Justice Mandokhail said that if someone God forbid does three attacks at once, on the Supreme Court, on the Parliament and on the Armed Forces General Headquarters (GHQ), will his trial be held in the Anti-Terrorism Court for the attack on Parliament and Supreme Court and in the military courts for the attack on GHQ. He said, “In my view, the three attacks are the same actions, so why and how is the distinction made?”
Khawaja Hussain responded that the apex court should not “open such a door that any charge me made triable in military courts.”
Justice Aminuddin Khan interjected, saying, “We are not opening any doors. We are hearing an appeal on a decision already made. We only have to see whether the appeal is accepted or rejected.”
In response, Khawaja Hussain said that the Defense Ministry’s lawyer Khawaja Haris had said in his arguments that the appeal was not hearable under Clause 3 of Article 184. “The defense ministry’s lawyer said that where Article 8(3) applies, the application was not admissible. If Clause 3 of Article 184 cannot be applied in this case, then it cannot be applied in any other case.”
He quoted a verdict by Chief Justice of Pakistan Yahya Afridi saying that Justice Afridi has always been cautious about giving using the authority of Clause 3 of Article 184. “Justice Afridi also gave the verdict in the military courts that the application was admissible directly under Clause 3 of Article 184,” Khawaja Hussain added.
In his concluding comments Khawaja Hussain said, “This country was built by the efforts of the great lawyer Quaid-e-Azam Muhammad Ali Jinnah. This constitutional bench is sitting under the picture of Quaid-e-Azam. In the past, our judiciary has made decisions due to which the nation had to suffer. I request that the appeals be dismissed while maintaining the central decision.”
After Khawaja Hussain’s arguments, the hearing of the military courts case was adjourned until tomorrow. PTI leader Salman Akram Raja’s lawyer will give his arguments in tomorrow’s hearing.