SC debates 1973 Constitution’s provisions in military trials case

ISLAMABAD: The seven-member constitutional bench headed by Justice Aminuddin Khan resumed hearing of the appeals case related to the trial of civilians in military courts. The bench includes Justice Jamal Khan Mandokhail, Justice Musarrat Hilali, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan and Justice Shahid Bilal.

Defence Ministry’s lawyer Khawaja Haris resumed his reply arguments, and said that the Constitution recognises the military court proceedings. “Court martial is constitutionally recognised. Court martial is not only conducted during wartime but also in times of peace,” he said.

Khawaja Haris says military trial is fair, SC questions what if it isn’t

Justice Rizvi asked about the “pick and choose” process of determining which accused persons are subjected to military trials, to which Khawaja Haris replied that “It is not a matter of pick and choose. The matter here is only to ensure the discipline of the forces.”

The counsel mentioned the Hudood Ordinance, saying that in Islamic law, punishment is determined under this ordinance. In line with that, “Whether the crime was committed under the Official Secrets Act or not is also not a matter of pick and choose”, Khawaja Haris added.

He argued that lawyer Faisal Siddiqui had referred to the 1995 law in his arguments, but “our case does not fall in 1995.” Justice Mandokhail asked, “Is the right of appeal given or not [in military trials] and if given, at what forum can the appeal be made?”

Khawaja Haris said that this depends on the nature of the crime which has also been explained in Section 2(1)D. “The crimes specified in the Army Act come under the Official Secrets Act,” he said.

Justice Mandokhail said, “If civil crimes also come under the Official Secrets Act, can all of them be tried in a military court? Khawaja Haris responded, “This kind of discussion also took place in FB Ali [case trial]”.

Justice Mandokhail remarked, “Take the example of kidnapping, if the kidnapping was done for the purpose of terrorism will the trial will be conducted under ATA [Anti-Terrorism Act]. If the kidnapping was done for the purpose of ransom, it will be conducted under PPC [Pakistan Penal Code]”.

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In response, Justice Mazhar asked, “What does it mean to be a member related to the armed forces in the Army Act?”

Justice Hilali said, “When it is clear that this is only for members, what else is there to [debate]?” The bench remarked that if a civilian attacks army installations, what does it have to do with the court martials.

Khawaja Haris answered, “The law related to a ‘member of the armed forces’ is a complete law. However, ‘member related to the armed forces’ is a provision, and not a complete law.”

Justice Afghan said that if civilians were to be brought under the same law, then it would have been written separately in the act.

“Many things were added to the 1973 constitution during the martial law period,” the bench said, adding that some things of the martial law period were changed later and the 1973 Constitution was brought back in its original form.

Justice Afghan said, “Matters regarding the Army Act were not touched upon [at that time]”.

Justice Mandokhail said to the counsel to be cautious before the situation becomes one of out of the frying pan, into the fire situation, “Khwaja Sahab, let’s just hope we don’t end up trying to dodge prayers only to get stuck with fasting instead!”

Justice Hilali remarked that Section 2 of the Constitution was added in 1967. “This section was made under the 1962 Constitution,” Justice Hilali said. Justice Mandokhail added, “The High Court and subordinate judiciary were created under Article 202.”

Justice Hilali said that the military law conflicts with the Constitution. “Our 1973 Constitution is very strong,” she added.

Khawaja Haris responded that fair trial is also ensured in court martial proceedings. “Officers of military courts also have legal capacity.”

Justice Rizvi said, “12 or 13 military provisions were attacked. Those attacks on military installations were a security failure. At that time, action was taken against military officers or anyone held accountable for May 9 events by any institution?”

Military courts case: Khawaja Haris likely to complete his arguments today

In response to this question, Additional Attorney General Aamir Rehman said that the answer to this query will be given by Attorney General of Pakistan (AGP) Mansoor Usman Awan.

With this, Khawaja Haris completed his reply arguments, and the bench thanked him for his comments.

Afterwards, the court adjourned the hearing of case related to the trial of civilians in military courts until April 28. AGP Awan will give arguments at the next hearing.