SC bench discusses review pleas’ admissibility against military trials

ISLAMABAD: The seven-member Constitutional Bench of the Supreme Court took up the hearing of civilians’ trials in military courts case once again. Defense Ministry Lawyer Khawaja Haris presented arguments, continuing from yesterday’s hearing.

Speaking on Section 21d1, as mentioned by the bench yesterday, Khawaja Haris said that if that article is found to be correct, then the petitions filed against military trial would be inadmissible altogether. “The entire procedure [of trial] is followed in military courts,” he added.

Also read: Constitutional Bench discusses military courts, 21st amendment

Justice Hassan Azhar Rizvi inquired about the records of cases under trial in the military courts. “The court wants to see how the testimonies were decided in the trial?” Justice Rizvi said, adding that the court was refused to be provided this record.

Justice Rizvi added, “The lawyer of the government should not have given this answer.” Khawaja Haris responded, “The Court will be given the record of one case for review.”

Justice Muhammad Ali Mazhar asked if the requirements of a fair trial fulfilled in the military court? To this the government’s counsel said that High courts and Supreme Court cannot review the merits of the military court’s cases.

Justice Rizvi said that the court is not going to discuss the evidence presented in the trial, rather it merely wants to review it.

“Under natural justice, no one can be punished without being heard,” Justice Rizvi said. “If the sections of the law are found to be correct, the petitions will be inadmissible,” Khawaja Haris responded.

Justice Jamal Khan Mandokhail said, “We have to see whether Article 10A was followed or not.”

When Khawaja Haris refered to the previous cases, the bench pointed out that in those cases records were submitted for review. Justice Rizvi expressed anger towards the counsel saying “Two days ago you said that the Supreme Court cannot review the record. Why did you make a false statement?”

Khawaja Haris clarified, “I had said that the evidence cannot be evaluated on its merits.”

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

Justice Mandokhail said, “The decision against which the appeal was made mentions a transparent trial. How is it possible that the aspect of a transparent trial is not examined?”

“If Section 21d1 is found to be correct, what will be the result?” Khawaja Haris asked again, adding that if the sections of the law were found to be correct, these petitions against the trial would not be hearable. He said, “In the presence of Article 8(3) and 8(5), the petitions against the trial are inadmissible.”

The Defence Ministry’s lawyer also pointed out that the five-member bench did not properly review the point of admissibility. “In the FB Ali case, when the crime was committed, the accused had retired from service,” Khawaja Haris said.

He posed a question to the bench on whether there is a difference between the fundamental rights enshrined in the 1962 and 1973 constitutions. “Right to life and fair trial have been there since the beginning,” the counsel said.

Justice Muhammad Ali Mazhar responded, “Even if there is no Article 10A of fair trial, the procedure must be followed.” Justice Mandokhail added, “Have the fundamental rights been withdrawn in Article 8(3)?”

Khawaja Haris said that this article has been included in the Constitution since 1973. “In the FB Ali case, the fair trial of the accused was also reviewed. “When Article 8 Sub-section 3 is applied, fundamental rights are lost,” Khawaja Haris added.

Justice Mandokhail said, “The question is whether the law on military trials of civilians can be amended.” Justice Mazhar added, “The article on fair trial came in 2010. The Criminal Code is from 1898. The entire procedure for trial has been given in the Criminal Code.”

Justice Musarrat Hilali asked that why was there a need for Article 10A of fair trial? To this Khawaja Haris replied, “Article 10A There were various articles of fair trial before.” Justice Mandokhail added, “What is the purpose of making the Army Act?” Is the purpose of this Act establishing discipline in the armed forces or checking the criminal activities of civilians, Justice Mandokhail asked.

Khawaja Haris responded that the purpose of the Army Act is to ensure that there is no hindrance in the activities of the armed forces.

Justice Mandokhail asked, “Would these problems not have arisen if there was a separate legislation for criminal activities?” Khawaja Haris replied that the process of improving the law is continuous.

Justice Naeem Akhtar Afghan shed more light on the significance of Section 21d1, saying, “The Army Act deals with the officers and men of the armed forces. The section 21d1 was added by amendment in 1967. With this amendment, the words “any person” were added to the law.”

Justice Afghan said, “With the inclusion of these words in the law, retired officers also came under the purview of military trial.” If this section remains invalid, then military trial will not be possible of even retired officers, he said, adding, “With the repeal of this section, Brigadier FB Ali will also be acquitted. If a retired officer is undergoing a military trial, that too will end.”

He said that even after the introduction of 10A in the Constitution, fair trial is still discussed in courts. “With the amendment to the law, retired officers were included in military trials. Now civilians have been included in the military trials,” Justice Afghan added.

He accentuated, “It seems that the words “any person” included in the law have not been correctly defined.” Justice Afghan said that a constitutional amendment had to be made for the trial of civilians.

Khawaja Haris, however, said that the constitutional amendment was done for some other reason.

Once again, the court asked the Ministry of Defense for details of the military trials of civilians so far. Justice Aminuddin Khan asked for the data on how many civilians have been tried so far apart from Kulbhushan Jadhav case.

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

Addressing the counsel, Justice Mandokhail repeated, “According to you, all civilians can be tried by military means?” Khawaja Haris said, “No. The classification of military court trials of civilians is given in 83A.” The lawyer added that the classification of military court trials of civilians has been recognised in many court decisions.

The bench adjourned the hearing until tomorrow (January 17). Justice Aminuddin asked Khawaja Haris that will the arguments be concluded by tomorrow, to which the latter responded, “Yes, I will try my best to conclude arguments tomorrow.”