Constitutional Bench discusses military courts, 21st amendment

ISLAMABAD: The Constitutional Bench of the Supreme Court, once again, took up the case of civilians’ trials in the military courts. A seven-member constitutional bench headed by Justice Aminuddin Khan presided over the hearing.

Picking up from where the hearing was adjourned yesterday, the counsel for the Ministry of Defence Khawaja Haris came to the rostrum and began his arguments. “Military courts are recognised in court decisions,” he said, adding, “If there is a nexus of crime under the Army Act, there will be a military trial.”

Also read: Constitutional Bench delves deeper into Army Act, civilians’ trials in military court

Khawaja Haris said that this is not about a civilian being tried in the military courts. It is about trying a crime that has been committed under the Army Act.

“What is meant by nexus of crime?” Justice Jamal Khan Mandokhail asked, to which the counsel responded that Nexus means that the crime is related to the Army Act. “Will the intention of the person committing the crime be seen along with nexus?” Justice Mandokhail asked. To this Justice Aminuddin said that the accused can take this line of defense in a military trial that it wasn’t the intention to commit the crime.

Lawyer Khawaja Haris also referred to the decision of the 21st Amendment case during today’s hearing.. However, Justice Mandokhail said that the 21st Amendment was made in a specific period and under specific circumstances.

Justice Mandokhail said, “Even when there was an attack on the Army Public School in Peshawar in the Cantonment area, the trial was not possible in a military court, which is why the constitution had to be amended to try terrorists in a military court.” The court’s decision also shed light on the defense of Pakistan, he said.

Khawaja Haris responded that according to the decision, “both terrorism and war situations are mentioned in the defense of Pakistan.” He said that the nature of the country’s defense is different in peacetime, wartime and terrorism.

Also read: Does army officer have enough experience to pronounce death penalty: Justice Mandokhail

Justice Mandokhail reminded the court of the question that Justice Hassan Azhar Rizvi had asked about the attack on GHQ and other installations. “All these incidents are also mentioned in the decision of the 21st Amendment case,” Justice Mandokhail said.

Khawaja Haris reiterated that the 21st Amendment was done for a war situation. The court reiterated that the amendment was brought because the military trial could not have happened without it. Khawaja Haris disagreed with this statement. He said, “A military trial could [still] have been held. The reason for the constitutional amendment was something else. It was done to bring the accused within the ambit of the law.”

He repeated that the trial of the accused of May 9 events will be held in the military courts. Justice Mandokhail said, “We recognise the military courts. But we need to examine the blot on the escutcheon for the amendment in law”.

Khawaja Haris said that Section 21d1 has been part of the Army Act since 1967. “This provision has been confirmed in the court decisions to date,” he said adding that the 21st Amendment bench also recognised 21d1.

Justice Mandokhail asked if there was a nexus in the Army Public School (APS) tragedy, to which the ministry’s counsel responded in the affirmative. Then Justice Mandokhail asked if the Army Act existed at the time of the APS attack. Khawaja Haris responded that the Army Act and the Official Secrets Act were both in force at the time of the APS tragedy.

The court then asked that why was the trial not conducted in a military court if the nexus and the Army Act already existed. “Why did the constitution have to be amended to try terrorists?” Justice Mandokhail asked. The counsel answered that the amendment was done to encompass broader range of crimes, extending beyond those related to discipline and performance of duties.

The court asked that where will the trial of terrorist acts in the name of a terrorist group or religion be held? The counsel responded that under the Army Act, the trial of such terrorist incidents will be held in a military court. “Such crimes can be tried in military courts even without a constitutional amendment,” Khawaja Haris said.

Justice Hassan Azhar Rizvi then posed a question that a few days ago, it was reported that some people were kidnapped, and later two of them were released. “If a terrorist organisation kidnaps an armed person for ransom, where will the trial be held?” he asked.

“Raza Rabbani wept after signing 21^st amendment, he knew what he had done”

Khawaja Haris said that even if we suppose that the trial cannot be held in a military court, “the question is that in this situation, what will be the impact on the case.”

Justice Naeem Akhtar Afghan said that the aspect of legislative intention was also seen in the decision of the 21st Amendment case. “You have ignored this aspect of the decision,” Justice Afghan said to Khawaja Haris.

Justice Hassan Azhar Rizvi said that former chairman of Senate Raza Rabbani even wept after voting for the 21st Amendment. “The tears of the former Senate Chairman are also a part of history.” Justice Mandokhail added, “If he had not voted, he might have lost a seat [at most]”.

Khawaja Haris replied, “This was probably not the reason why Raza Rabbani cried.” The court said that Rabbani himself had told the court that he had no choice.

Also read: SC’s Constitutional Bench debates civilian trials in military courts

Justice Mandokhail defended Rabbani saying that he has made many contributions to the 18th Amendment. “Razada Rabbani is a man of principle, it is understandable for him to cry after voting. He knew what he had actually done,” Justice Mandokhail said.

Justice Mazhar added, “Rabbani was even angry for two years after voting.” Defense Lawyer Khawaja Haris said that he would not comment on it.

The Constitutional Bench then adjourned the hearing until tomorrow (January 16).