Imran Khan’s lawyer argues against military trials in front of Constitutional Bench

ISLAMABAD: The Constitutional Bench of the Supreme Court resumed hearing of the appeal against the trial of civilians in military courts. The seven-member bench under Justice Aminuddin Khan is presiding over the hearing.

Uzair Bhandari, counsel of former chairman of Pakistan Tehreek-e-Insaf (PTI) Imran Khan, resumed his arguments with the statement that even if the Army Act is repealed, the anti-terrorism law will still exist.

“If there are multiple forums, it will be necessary to see [which of them offers] protection of the fundamental rights of the accused,” Bhandari said, adding that Article 245 of the Constitution does not give judicial powers to the army.

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

Justice Jamal Mandokhail asked if the court martial does not constitute as a judicial proceeding. The counsel replied that court martial is a judicial power but it is only applicable for military personnel, and not for civilians.

Justice Aminuddin said, “A category of civilians also falls under the Army Act. How will there be a distinction as to which civilian falls under the Army Act and which does not?”

Justice Aminuddin said that the reference to Article 245 is irrelevant in this case.

Justice Mandokhail said, “The army has been given two types of powers in the Constitution. One is the power to defend and the other is the power to assist the civil government.”

Justice Aminuddin then asked, “If we accept the argument of Article 245, how will the army defend the institutions? If there is an attack on GHQ, will the notification of Article 245 be awaited?”

To this the counsel said, “Every institution gets its powers from the constitution.”

The bench asked, “If the military and civilians together violate the Official Secrets Act, where will the trial take place?” To this Bhandari said that in such a case, the trial will take place in the Anti-Terrorism Court.

Justice Mandokhail said, “If we understand what was the purpose of making the Army Act, half the problem will be solved. It is clearly written in the Constitution that the law related to the Armed Forces.”

Bhandari responded, “Sub-section 3 of Article 8 is only for the armed forces.”

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Justice Mandokhail questioned the lawyer’s argument that authority was not given for punishing in disciplinary proceedings against a civilian officer. “The authority to punish has been given in the military court. If an army officer commits a crime on leave, where will the trial take place? Is the authority of the military court broad or limited? The trial of Ranger personnel in Karachi was held in the civil court. Legislation can only be made in accordance with the constitution. No law, that is not in accordance with the constitution, can be made.”

Justice Musarrat Hilali asked Uzair Bhandari, “Why is the FB Ali case so important? What did the presiding officer of the FB Ali case himself do?”

“Our tragedy is that the law is sacrificed for politics,” she added.

The counsel replied, “The 1962 Constitution accepted the military trial court martial proceedings. If someone is firing [at you], you don’t have to take anyone’s permission to defend yourself. When there is an attack, all institutions including the police and the army come into action. The Supreme Court has already settled this point in the Liaquat Hussain case in the past.”

He added, “The court has ruled that if the army arrests an attacker, he will be handed over to the civil authorities. The army can definitely assist the civil authorities with regard to the arrested person.”

During the hearing, Justice Hassan Azhar Rizvi questioned the condemnation of May 9 events from Imran Khan.

Addressing Uzair Bhandari, Justice Rizvi said, “When the army came to Karachi after the curfew was imposed, people showered them with flowers. Various places including GHQ were attacked in a single day. You are representing a former prime minister and a party leader. Has he condemned the May 9 incidents and said that it was wrong? Has there been condemnation in his written response to the court?”

Bhandari answered that Imran Khan’s miscellaneous application is part of the court record. “Imran Khan has condemned May 9 in his written submissions. He has said that those responsible should be punished.” The counsel added that condemning does not mean that Imran Khan accepts the official position.

Justice Mandokhail asked the counsel, “Can a prime minister stay in office beyond his fixed term?” Bhandari said that a prime minister who comes for a term of five years cannot stay for six years.

In response, Justice Muhammad Ali Mazhar said, “If you believe that court martial is correct to the extent of the soldiers, then the matter has [already] gone beyond the scope of Article 175. Personally, I agree with Justice Muneeb Akhtar’s decision.”

Justice Mazhar said that every lawyer’s arguments are different, and the court has to gather everyone and also see the court’s decision. Justice Aminuddin said, “I have been saying since day one that everyone will throw the blame on our heads.”

Justice Mandokhail said, “I think the bench is mixing the arguments of the lawyers. Salman Akram Raja had talked about a separate forum for court martial in India.” Justice Mazhar said, “In my opinion, Salman Akram Raja’s position was different.”

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Justice Mandokhail said, “The court is not bound by arguments, it can also decide itself according to the constitution.”

Bhandari reiterated, “The army cannot take any action against civilians except under Article 245. If the army has any secret authority, show it [to us] and we will accept it. Civilian authorities are superior to the army in all cases. The commanding officer’s taking the custody of suspects is tantamount to the army’s supremacy over civilians.”

Justice Naeem Akhtar Afghan asked, “Was it an act of Parliament to include the 2(D) clause in the Army Act?” Justice Hilali asked, “If the High Court is attacked, where will the trial be held?”

To this Bhandari said that let alone the High Court, even the Supreme Court has been attacked.

Justice Mandokhail asked that if the Parliament is attacked, will the Parliament form a separate court for the trial? “The executive and the judiciary are kept separate in the constitution.”

He said that in a military trial, the complainant is the executive itself. “Can the complainant be the judge of their own case?” Justice Mandokhail asked.

Uzair Bhandari said that the 1962 constitution accepted the military trial court martial proceedings, “the armed forces cannot change the judiciary, there is no constitution that allows the establishment to conduct court martial.”

He added that Article 245 determines the powers of the armed forces, the armed forces have to act according to the instructions of the federal government. “All members of the armed forces have to take oath under Article 244, which has given the entire framework for military trials,” he said, adding “who gave the judicial power to try civilians?”

Justice Rizvi said, “If we look at history, there were attacks on military installations in 1971 as well. Here, a political party is not attacking a leader’s house, governor’s house or a police station. Here, military installations were attacked in different cities at the same time.”

The justice added, “If this situation continues, anarchy will spread, which will be dangerous for the future. There is a saying that whoever has a hammer in his hand sees everything as a nail.”

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Justice Aminuddin added that the military did not get the authority, but rather it got this authority through the law of the parliament. Justice Mazhar said that the resolution of the parliament was also approved.

In response, Bhandari said, “People were arrested from the parliament by extinguishing the lights while offering prayers there.”

Justice Aminuddin interjected, barring the counsel from mentioning matters that were not part of the case.

Later, the court adjourned the hearing of the case till tomorrow. Imran Khan’s lawyer Uzair Bhandari will continue his arguments tomorrow as well.