Civilians are tried under Article 175, military courts are outside its scope: Bhandari

ISLAMABAD: The seven-member Constitutional Bench resumed hearing of the military courts case, under Justice Aminuddin Khan.

Counsel of Pakistan Tehreek-e-Insaf’s (PTI) founder and former chairman Imran Khan, Uzair Bhandari resumed his arguments. He said, “The armed forces have been given powers under Article 245 in the 1973 Constitution. The armed forces cannot act outside Article 245 of the Constitution.”

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The counsel said that the army can be called to assist civilians, but military courts cannot replace civilian courts. “Article 245 was applied at the time of what happened on May 9 and 10,” he added.

Justice Muhammad Ali Mazhar asked, “Where is the notification of the application of Article 245?” The counsel answered that it is present in Aitzaz Ahsan’s petition, adding that the Punjab government had issued a notification of Article 245.

Justice Mazhar asked if the article was only implemented in Punjab, to which the counsel replied that it was also in effect in Khyber Pakhtunkhwa and Sindh. However, he said that he is not aware if it was in place in Balochistan.

Justice Jamal Khan Mandokhail asked, “What is the relationship between Article 8, Clause 3 and Article 245?” Justice Mazhar added, “Was there any cabinet decision regarding the military trial of civilians?”

Uzair Bhandari replied that there are resolutions of the National Assembly and the cabinet decision available on this. “This resolution supported military trials under three laws,” he added.

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Justice Mazhar said, “The resolution and the cabinet decision are administrative.” Justice Mandokhail added, “In the Constitution, the power to make a constitution belongs only to the Parliament.”

Bhandari said that in the 26th Amendment, the government made the formation of provincial constitutional benches subject to provincial resolutions. “The resolution of the military trial on May 9 is political in nature,” the counsel added.

Justice Mandokhail said, “The parliament also passed a resolution against the decision of five judges.” The counsel responded, “The parliament says a lot of things about judges. [But] there is no provision for court martial of civilians in the constitution. Apart from Article 245, the army has no authority over civilians, and in the article the army has no judicial authority.”

The counsel said that perhaps there is some other provision of the constitution under which military trial can be held for civilians, “but to my knowledge there is nothing like that.”

Justice Jamal Mandokhail asked if the courts created for the purpose of Article 8(3) conduct trials? “Under the Constitution, the armed forces are under the executive, so “can the forces under the executive exercise judicial power?” he asked.

Lawyer Bhandari said that general amendments cannot affect fundamental rights. “Let’s see what the Constitution allows; for the confession of the accused, there must be a subject, FB Ali case clarified that. Those who come under Section 2(D) do not come under 83A. The Army Act is only related to discipline,” he added.

Justice Aminuddin asked that the employees who come under Article C do not take an oath. The counsel responded that a court-martial cannot be done for even those who come under Article C. The court-martial is only for officers, he added.

Justice Aminuddin said that the nature of the crime will be determined by the member of the armed forces members. To this the counsel said that fundamental rights are not affected by the nature of the crime. “The court can also review the laws that existed before the constitution was formed. The trial of civilians can only be held under 175. Military courts are outside Article 175, and the army cannot go beyond the scope of Article 245,” Bhandari added.

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After these arguments, the Constitutional Bench adjourned the hearing of the appeal against civilians’ trials in military courts until Monday (February 24).

Uzair Bhandari will continue arguments on Monday as well.