Isn’t law amendment required for civilians trial in mly courts, asks Justice Hilali

ISLAMABAD: The Supreme Court of Pakistan adjourned for today (Wednesday) the hearing into the military courts case.

A seven-member constitutional bench of the apex court headed by Justice Amin-ud-Din Khan heard intra-court appeals filed by the federal government and the Ministry of Defence against its verdict declaring the trial of civilians in military courts as unconstitutional. Other members of the bench were Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal.

During the course of hearing, Justice Mandokhail remarked that the primary duty of the armed forces was the defence of Pakistan. Any violation of law goes against the state’s interests, and all crimes ultimately harm the state interests.

Khawaja Haris, counsel for the Ministry of Defence, replied as to how could the armed forces defend the country when their legs were being pulled from behind. The counsel, continuing his arguments in rebuttal, submitted that under the Constitution, court-martial proceedings were not under the jurisdiction of high courts. However, there are provisions in the Constitution that support the court-martial authority.

Justice Mazhar noted that Salman Akram Raja had also referred to a judgment which he interpreted in his own way. Justice Rizvi said specific pages 531 and 533 of the decision seemed to appear even in Raja’s dreams, as he kept referring to them repeatedly. Justice Mandokhail remarked that now even they saw the figure of FB Ali in their dreams, referring to the FB Ali case which upheld the obligation to follow legislation. Justice Mazhar commented that in the FB Ali case, it was held that the nature of the allegation and its connection to the defence of Pakistan determined applicability. He questioned whether that meant the law applied only to members of the armed forces, as Section D of the Army Act applied to certain individuals and exempted them from the rest of the Act.

Haris contended that May 9 crimes were against the state’s interests. At this, Justice Mandokhail responded that every violation of law was against the state interests. “Was the train incident in Bolan not against state interests,” Justice Mandokhail asked, adding that the armed forces’ fundamental role was to defend Pakistan. “Then how will we defend if our legs are being pulled from behind,” Haris replied. Justice Mandokhail replied that this was not a matter of emotions, it’s a matter of national security.

“If a police officer is posted at the door of our courtroom, it is his responsibility to prevent any armed person from entering,” Justice Mandokhail noted, adding that if he left his post even for five minutes, he violated discipline. “Isn’t that a matter of state security,” he questioned and added how a conspiracy that hasn’t even occurred yet can be judged under the law.

Haris responded that even the conspiracy was covered under the Army Act. Justice Mazhar added that even the Criminal Procedure Code differentiated between murder and attempted murder. Justice Hilali asked a pointed question, expressing concern about how the media might interpret her words. “Can an ordinary legislation strip citizens of their fundamental rights? Shouldn’t a constitutional amendment be required for civilians to be tried in military courts?” she questioned, adding that in India, there’s an independent forum to challenge the military trials.

Justice Mazhar noted that the attorney general had made submissions to the court regarding appeals, and those were part of official court orders.

Meanwhile, Justice Amin directed the attorney general to appear personally after the defence ministry’s counsel concluded his arguments. Justice Mazhar observed that whether or not fundamental rights were granted or the right to appeal existed, that was not even the question before the court. Justice Mandokhail remarked: “If a case can’t even come under Article 8 Clause 3-A of the Constitution, the matter ends there, what appeal is there then?” Justice Mazhar clarified that he was not granting anyone the right to appeal but the justification of giving the right to appeal was made internationally.

Later, the court adjourned the hearing until today (Wednesday) when Haris is scheduled to continue his arguments in rebuttal.