ISLAMABAD: The seven-member Constitutional Bench of the Supreme Court headed by Justice Aminuddin resumed the hearing of appeal against trial of civilians in the military courts. Defense Ministry lawyer Khawaja Haris continued his rejoinder arguments.
“The challenged decision should not have gone into Article 8(5) of the Constitution,” Khawaja Haris said. To this
Justice Jamal Khan Mandokhail said that the Article 8(3) has been exempted from fundamental rights. “Is this exemption only for the armed forces or can its jurisdiction be extended to civilians?” he asked.
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The counsel replied, “Article 8(3) of the Constitution is not only for members of the armed forces, civilians can also be brought under it.”
Justice Mandokhail said, “Let us assume that civilians could have been tried in the FB Ali case under the 1962 Constitution. The question is whether the court martial of civilians in military courts is in accordance with the 1973 Constitution? Is this court martial in accordance with Article 175(3) and Article 10A?”
The counsel said that he would respond to this query after completing his arguments on Article 8. “We have to first determine what are the defects in the challenged decision. We also have to see what new points are to be determined in this appeal.”
Justice Mandokhail said, “We agree with you to the extent of Article 8(5).” Justice Musarrat Hilali interjected, “Not we, you agree. This case has been going on since last year and I am not getting an answer to the question.”
Turning to the counsel, Justice Hillali said, “Do military courts fall under the category of Article 175? Is a military court also a court of the same standard as a general court?”
Khawaja Haris reiterated that he will answer this question after satisfying the court on Article 8. “When will these judges be satisfied?” Justice Hilali remarked, which was received by a round of laughter in the court.
Justice Hassan Azhar Rizvi asked the counsel, “How much more time will it take you?” Khawaja Haris responded, “I thought I would complete the arguments on four points in four days. If the hearing is half a day, it will take eight more days.”
Justice Mandokhail said that no one takes that long to give rejoinder arguments, to which the counsel said that the opposing parties have raised new points and he will answer them. At this point, Salman Akram Raja requested the court to give him one day after Khawaja Haris’ comments.
Justice Aminuddin said that the court will accept Raja’s request. “I will submit the written submissions again then,” Raja said.
Justice Aminuddin said, “We will try to issue a short decision immediately after completing the hearing”.
Khawaja Haris said, “If new arguments were not given, I would have completed the rebuttal arguments soon.”
Continuing with the proceedings, he said, “Court martial of civilians is not a matter of the army’s ego. The purpose of court martial is to defend Pakistan and national security. The court cannot make any decision on mere rumors.”
Justice Mandokhail said, “We have heard this case in detail, it is surprising that no one has come before us. Any armed personnel could have come before us and asked to give them an independent judicial forum too.”
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After these arguments, the Constitutional Bench adjourned the hearing of the case until April 7.
Due to the Eid holidays, the judges will perform their duties in their respective cities, Justice Aminuddin said.
Ministry of Defense’s lawyer Khawaja Haris will continue the rejoinder arguments at the next hearing.