ISLAMABAD: The Constitutional Bench of the Supreme Court resumed the hearing of civilian’s trials in military courts case hearing. The seven-member bench headed by Justice Aminuddin Khan heard the case.
Salman Akram Raja began his arguments in today’s hearing and said that the FB Ali case was decided according to the 1962 Constitution. Justice Mandokhail asked, “What are the powers of military courts according to the Army Act?” adding that can a person who is not part of the army come under the category of military court only on the basis of a crime?
Raja responded that in the FB Ali case, it was said that trial of civilians is possible only on the basis of fulfilling fundamental rights. Justice Mazhar asked, “FB Ali himself was also a civilian, how did his court martial happen?”
To this Salman Akram Raja responded, “The court had declared that the provision of fundamental rights is necessary. The court had declared that there was no violation of fundamental rights in the trial.” He added, “In the FB Ali case, clause 2(1)d(1) of the Army Act was discussed. It was said that the Army Act brought by the Presidential Ordinance is correct. It was also said that it can be reviewed under fundamental rights.”
Justice Mandokhail asked, “What was the definition of nexus in the FB Ali case?”
Raja answered, “Inciting the armed forces and the crime being related to Defense Pakistan were called nexus. The case was read in such a way that it created the impression of allowing the establishment of a separate court.”
Addressing Raja, Justice Aminuddin said, “You are giving arguments against the central decision.” Raja said, that Justice Ayesha Malik’s decision is also available.
Justice Muhammad Ali Mazhar said, “Why were the provisions of the Army Act declared null and void?” Raja replied that the appeal is filed against the degree, not against the reasons. “The court can change the reasons while maintaining the operative part,” he added.
Justice Mandokhail mentioned the 1968 Ordinance came. “Under the ordinance, judicial powers were given to the Balochistan Tehsildar. When the matter was challenged in the Azizullah Memon case, the Supreme Court ended it,” he said, adding, “The series continued for 14 years even after the Constitution.”
Salman Akram Raja answered, “In 1987, when Article 175 Clause 3 came, the law changed. If the court upholds Justice Ayesha Malik’s decision on Article 10A, then it is our victory.” He added, “It is strange that Zia-ul-Haq punished FB Ali in a military court.”
Justice Mandokhail said, “Zia-ul-Haq may have later thought that he was wrong earlier.” Justice Musarrat Hilali said, “Isn’t it so? Did Zia-ul-Haq later apologized to FB Ali?”
Addressing Raja, she said, “Was the 1962 Constitution correct?” He responded, “Does the 1962 Constitution start from here, I am a field marshal delegating powers to myself.”
Justice Mandokhail said, “Those who issue fatwas stay, governments keep coming and going. Is there a Section 2D like our Army Act anywhere in the world?”
Raja replied, “I have done a lot of research, there is no such section in the world. Article 175-3 of the Constitution ensures a free trial. There is nothing like Article 175-3 of our Constitution in India.
He added, “Article 175-3 gives a complete mandate of a free trial.”
The bench said, “The Army Act is applicable only when a civilian tries to provoke armed personnel. Is Article 10A only to the extent of civilians?”
Justice Mandokhail said to the lawyer, “You should limit yourself to your case. We will see the remaining questions when they come up in another case.”
Raja replied, “The benefit of Article 175-3 must be given to both civilians and armed forces.”
Justice Hassan Azhar Rizvi said in response, “Sometimes anti-state agencies use civilians. Sections 2(1)d(1) and 2(1)d(2) of the Army Act were null and void. In such a situation, even those working for anti-national agencies could not have a military trial.”
“I want to present a comparative review of the Indian Army Act and the Pakistan Army Act,” Raja said. Justice Mazhar asked if the India’s Army Act had the sections under concern, to which the counsel responded in the negative.
Justice Mazhar said, “If these provisions are not there, how can you conduct a comparative review?”
Justice Aminuddin concurred, “Our law and India’s law are different.” Justice Mandokhail added, “Civilians and military personnel are citizens of Pakistan.”
Raja replied, “It is said that the provisions related to civilians in the Army Act are for terrorists. But in fact, the government is imposing these provisions on its opponents.”
He added, “There is also an FIR against me for killing three Ranger personnel on November 26. It has been alleged that I was the one who planned the murder. I am being told to stop speaking in courts and on TV. I am being told that you will be taken to the military courts for the killing of Ranger personnel.”
“I may be arrested in the same case on February 7,” Salman Akram Raja said, adding, “If the court restores these provisions, they will be used in the same way.”
The constitutional bench adjourned the hearing until Monday. Raja will continue his arguments on Monday as well.