ISLAMABAD: The seven-member constitutional bench headed by Justice Aminuddin Khan resumed the hearing of appeal case related to military trial of civilians. Defense Ministry’s lawyer Khawaja Haris started his reply arguments, from yesterday.
“I will start from the same as I was talking about Volume 6. I will also inform the court about the historical aspect of Article 203,” Khawaja Haris said, “According to the Constitution, Court Martial Courts are not subordinate to the High Court. The constitutional provision supports the Court Martial.”
SC resumes hearing of appeal case on military trials of civilians
Justice Muhammad Ali Mazhar responded, “Salman Akram Raja had also referred to the judgment according to his interpretation.” Justice Hassan Azhar Rizvi added, “Salman Akram Raja has read these same pages repeatedly.”
Justice Jamal Khan Mandokhail said, “Now we also keep seeing the FB Ali’s face in our dreams”. The court said that in the FB Ali case, it was said that the basis for proving nexus will be on the nature of the allegation and that the basis for nexus will be related to the defense of Pakistan.
“Doesn’t this mean that it will be only for members of the armed forces?” Justice Mandokhail asked. The bench also said that the decision under discussion includes that those to whom Section D of the Army Act will apply, the rest will not be applicable.
Justice Mandokhail asked, “How will the law be applied to a conspiracy that has not yet taken place?” Khawaja Haris replied that the Army Act is also applicable for conspiring.
Justice Mazhar remarked, “There are separate provisions for murder and attempted murder in the Criminal Code,” adding that the criminal justice system is protected under Clause 3 of Article 175.
Justice Musarrat Hilali said, “There is a confusion on which I want to ask a question,” then added that the press will make her statement into something else altogether. She said, “There is no right of appeal. Can citizens be deprived of their fundamental rights by enacting general legislation? Should a civilian be subjected to military trial by constitutional amendment; [even] in India there is an independent forum against military trial”.
The bench made a statement that as far as the appeal is concerned, the Attorney General had submitted reports to the court, which are in the court proceedings orders. Justice Aminuddin said that after completion of the lawyer’s arguments, the Attorney General should appear himself.
To this, Justice Mazhar said that the issue of availability of fundamental rights or appeal is not within the jurisdiction of this case. Justice Mandokhail said that if this matter cannot come to court under Clause 3A of Article 8, then how can it be appealed?
Justice Mazhar explained the argument for the right to appeal was made under international principles.
The Jafar Express tragedy was also mentioned during today’s hearing. “Wasn’t the train incident in Bolan against the state interest?” Justice Mandokhail asked, adding that the main task of the armed forces is to defend Pakistan.
The counsel said that how will they defend the country if their feet are pulled from under them. Justice Mandokhail responded, “This is not a matter of being emotional, it is a matter of national security. The duty of the policeman should be outside the door of our court. His duty should be to prevent any armed person from entering the court. But if that policeman wanders around for five minutes, he has violated discipline. Isn’t this security of state?”
Justice Mazhar asked if there is a definition of civil crimes in the Army Act. “Did the repeal of Section 59(4) of the Army Act remove civilians from the category of the Army Act? Will the Supreme Court’s October 23 decision have the effect that no civilian will be tried anymore?”
Khawaja Haris answered, “I think the Supreme Court’s decision will have the same effect.”
It is clear that if a mason is working for the army, then during that time he will be subject to a military trial for the crime, Justice Jamal Mandokhail
Justice Mandokhail said, “If a mason works with someone else instead of the army after a year, the civil act will apply to him.” Addressing the counsel, he said, “You have not yet answered my question as to which article of the constitution military courts are under, because military courts do not come under Article 175.”
Khawaja Haris said, “Military courts are not [the type of] courts available all the time, they are [established] from time to time.”
Court martial of civilians aims to protect Pakistan, not army’s ego: Khawaja Haris
Justice Mazhar said, “Article 175 of the constitution states that the judiciary was to be separated from the executive in 14 years. Who will separate the judiciary from the executive?”
“This is the work of the executive,” Khawaja Haris replied.
The Constitutional Bench instructed the counsel to complete his arguments tomorrow.
During the proceedings, the bench also hinted at completing the case against military trials of civilians in military courts in the next two hearings. Afterwards, the bench adjourned the hearing until tomorrow (April 9).