SC says military courts case about fundamental rights, not just crimes

ISLAMABAD: Attorney General Mansoor Usman Awan appeared in front of the Constitutional Bench of the Supreme Court today, in military courts hearing.

The bench is presiding over an appeal case against declaring the trial of civilians in military courts null and void. The seven-member constitutional bench headed by Justice Aminuddin is hearing the case, and includes Justice Jamal Khan Mandokhail, Justice Musarrat Hilali, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan and Justice Shahid Bilal.

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“There is the entire procedure of trial in a court martial,” the Attorney General said, adding that the court has the entire record of how a military trial is conducted. “Death sentence is not carried out until a decision is made on the appeal,” he said.

Justice Mandokhail said, “There are fundamental rights in the Constitution, that is the issue at the moment.” The AG responded, “In 2015, when the matter came up in the full court, the court gave three options.”

To this, Justice Mazhar said that this matter was not before the court at that time, “the remarks at that time were given in a different context. At that time, our focus was not on appeal.” Justice Mandokhail added, “Those three options are there, tell me whether there is a right to appeal or not. If someone is given the right to a fair trial, what is the problem? How can an employee of the institution hear the case? You can say as much as you want that he is a very honest person, but how will he conduct a fair trial?”

“How can the people who conducted the trial be experts in legal evidence?” Justice Mazhar asked, with Justice Hilali adding, “When a judge goes on leave, hell is raised that the trial is being delayed. Here, there is not [even] a regular court.”

The court also sought responses on whether the federation and the provinces not have faith in their judicial system?

Attorney General Mansoor Usman responded, “You and we are well aware of the issues within the judiciary.”

“What is the problem if the government gives civilians the right to appeal?” Justice Hilali asked. “We cannot even see the trial records of military courts, “Justice Mandokhail added.

Addressing the AG, Justice Mandokhail said, “Do you want to abolish all institutions? People trust us only 50 per cent because of our decisions. What will happen if the courts are abolished?”

To this, Defense Ministry lawyer Khawaja Haris said, “There is no right of appeal in the Civil Service Act either.” The Bench pointed out that in the Civil Service Act, there is a service tribunal between the departments. “The only purpose of all these measures is to prevent unjust punishment,” Justice Mandokhail said, adding, “Court martial can be done all over the world. The question is just [whether] to extend the scope to civilians”.

“You should have made a constitutional amendment for the court martial of civilians,” Justice Afghan said. The bench remarked that it is not about the seriousness of the crime, it’s about the protection of the fundamental rights even if it is a terrorist who has committed a serious and terrible crime.

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“The fundamental rights of military personnel are suspended, are they not Pakistani citizens?” Khawaja Haris responded.

“Members of the army know that fundamental rights will be suspended,” Justice Mandokhail said, adding that the suspension of fundamental rights is linked to the crime. “It is also a soldier’s choice whether to commit a crime or not.”

The bench has adjourned the hearing until tomorrow (April 10). Khawaja Haris will continue his arguments in the next hearing.