ISLAMABAD: The seven-member Constitutional Bench headed by Justice Aminuddin Khan resumed the hearing of the appeal against trial of civilians in the military courts.
Justice Jamal Khan Mandokhail said that the issue is not whether civilians should be tried in military courts or not; the issue is what will happen if civilians commit crimes under the Army Act?
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“Can the jurisdiction of the Army Act be extended to civilians for committing crimes listed in the Army Act?” Justice Mandokhail asked.
The representative of the Lahore High Court (LHC) Bar and Imran Khan’s counsel Hamid Khan, said that the provisions included in the Army Act under which civilians are tried are unconstitutional. “Now I will explain Article 175(3) of the Constitution in my arguments. It is clearly written in the Constitution that the judiciary shall be separate from the executive,” he added.
“Tell me who was to separate the judiciary from the executive?” Justice Mandokhail asked, adding, “Under Article 175(3), will the judiciary be automatically considered separate from the executive? Or will the judiciary or the parliament declare the separation of the judiciary from the executive?”
Hamid Khan responded, “The words of the Constitution are clear, there is no need for a declaration by Parliament.”
Justice Muhammad Ali Mazhar said, “The majority decision said that military courts do not fall under Article 175(3). The Supreme Court decision looked at military courts in a historical perspective.”
Justice Mandokhail said, “According to you, under Article 175(3), the judiciary will automatically be considered separate from the executive. This means that after 14 years of this article, military courts cannot exist even for soldiers.
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Hamid Khan reiterated, “Military courts can exist only for members of the army.”
Justice Mazhar said, “If so, then you will have to admit that military courts are a parallel judicial system,” adding that it is very important that Article 175(3) has to be clear in this matter.
After hearing the arguments, the Constitutional Bench adjourned hearing of case until 11:30 AM tomorrow.
Defense Ministry’s lawyer Khawaja Haris will give arguments tomorrow.