Even Iblees was given the right to defend himself: Raja

ISLAMABAD: The Constitutional Bench of the Supreme Court resumed hearing of the case on trial of civilians in military courts. The seven-member constitutional bench headed by Justice Aminuddin Khan is presiding over the case.

Convicted criminal Arzam Junaid’s counsel Salman Akram Raja resumed his arguments. Justice Musarrat Hilali asked, “Do you admit that the crime of May 9 has been committed?” Raja replied, “Yes, I will tell the court about it.”

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Justice Hilali responded, “All limits were crossed on May 9. Now you remember the fundamental rights.” To this the counsel said that Article 184(3) cannot be limited. “The accused has the right to an independent court and a fair trial,” he added.

Justice Aminuddin said, “For a fair trial, you have to go beyond Article 83.”

Salmar Akram Raja referred to a question he was asked yesterday, and said that the legislation related to the army was made in 2015 and then in 2017. He said that the victims of the Army Public School (APS), Peshawar are still waiting for justice.

Justice Hilali pointed out that some convicted criminals of the APS attack were given capital punishment.

Justice Hassan Azhar Rizvi posed a question, that there is already an engineering corps and a medical corps in the armed forces with qualified engineers and doctors. “Should a judicial corps be created in the army now as well?” Justice Rizvi asked.

To this Justice Jamal Khan Mandokhail said that there is a JAG branch [Judge Advocate General] branch in the army. Justice Aminuddin raised the point that this work belongs to the legislators. “If the same crime has been committed, then the punishment will also be the same,” he said, adding that how could it be that for one person there is a military trial and for another person there isn’t.

The counsel responded, “Depriving a fair trial after accusing is a matter of fundamental rights.” Raja said that he too has been made a criminal, “I am accused of conspiring with Imran Khan to kill Rangers personnel. If the provisions of the law are restored, I will have to appear before a colonel.”

Military trials case: Raja contests courts established outside Article 175

Justice Muhammad Ali Mazhar, addressing Raja, asked, “Anti-terrorism sections must have been included in the FIR against you.” Justice Aminuddin asked Raja, “Has your military custody been sought?”

To this the counsel said that his case be left aside, and the point that should be considered is that a system has been made of making allegations and then taking the accused for a military trial.

Justice Mandokhail interjected, “You should not make assumptions.” Justice Muhammad Ali Mazhar concurred, “It is not like that someone will be arrested and a military trial will be conducted. Even in a general FIR, the accused is arrested on mere allegations.”

He added that the older law of the Official Secrets Act was only against espionage, and new crimes were added in the new law with the amendment to the Official Secrets Act.

Raja replied, “If Article 175, Clause 3 had been in place at the time of the FB Ali case, the trial would not have gone to the military court.”

To this Justice Aminuddin said, “In the central decision, the FB Ali case was not declared null and void under Article 175, Clause 3. To date, the FB Ali case has not been declared null and void in any court decision.”

Justice Mandokhail added, “Let me give an example of this in another way. The 26th Constitutional Amendment said that cases under Article 184, Clause 3, will go to the Constitutional Bench.” He said that the amendment also says that the pending cases with constitutional and legal interpretation will automatically go to the Constitutional Bench. A bench decided that cases cannot go automatically. We said no, after the 26th Amendment, cases will automatically go to the Constitutional Bench.”

“The argument you are giving is why the FB Ali case was not dismissed under Clause 3 of Article 175,” Justice Mandokhail added.

“Govt is using Army Act against opponents,” alleges Raja in ‘military courts’ case

Justice Mazhar pointed out that when there was no request to declare the FB Ali decision null and void in the main case, how can the bench do so now in the appeal case.

Justice Aminuddin asked Raja that why was the FB Ali decision not challenged. The counsel replied, “The hands of the court are not tied. It is an appeal court, it can look into the FB Ali case.”

Justice Mandokhail posed a question, “To what extent can we extend our hearing authority in the appeal. Can we also give separate reasons even if we do not agree with the reasons?”

Justice Hilali, addressing the counsel, said, “When the 21st Constitutional Amendment was made, your party supported the establishment of military courts.” Salman Akram Raja replied, “I am not representing any political party here.”

Justice Hilali said, “Let me say this, a political party also supported military courts under the 21st Amendment.” Raja said, “They did wrong at that time.”

Justice Hilali replied, “What behavior is this that when you come in the opposition you say that what was done back then was wrong?”

Justice Mandokhail added that one good thing about the 21st Amendment was that it was not supposed to be applicable to political parties. “May Allah have mercy on late Justice Azmat Saeed; he wrote the majority decision on the 21st Amendment,” he added.

Salman Akram Raja gave an example that what if a gentleman says that he is retired, so the Army Act does not apply to him. To this Justice Mandokhail said, “The ordinance is not related to members of the Armed Forces.”

The counsel said that 2(1)d(1) has never been reviewed before. Justice Mandokhail responded, “You should read 185, many things are clear in it.”

Raja said, “We have to see the potential impact of the clause that is being added in the future. Because of one clause, civilians are being taken to military courts. The entire framework has become different from the 1962 Constitution.”

Justice Aminuddin said, “The amendment that was made in this law was correct.”

Military courts case: Constitutional Bench laments lack of trust in courts

Salman Akram Raja said that he wishes to clarify this to the court that after the constitutions of 1962 and 1973, the situation is very different today.

Justice Hilali asked about the impression of the military courts. Raja replied that the impression is that no one who goes to the military courts can escape. “There is no greater crime than treason. [But] even in Article 6 we don’t say that there is no right to appeal. Three judges of the High Court decide, even in a treason case.”

Justice Mandokhail said, “This means that the fault lies with the system.”

Raja continued, “There is a right to a fair trial in due process all over the world. The first condition for a fair trial is the independence of the judiciary. The council also has the right to do what it wants. God gave even Iblees a chance to speak in his defense. Appeal in front of an independent forum is a fundamental right.”

Justice Hilali asked Salman Akram Raja, “Where is Kulbhushan these days?” to which he responded, “I think Kulbhushan’s appeal is not being heard.”

After these arguments, the Constitutional Bench adjourned the case until February 18. Salman Akram Raja will continue his arguments on Tuesday.