SC’s Constitutional Bench debates civilian trials in military courts

ISLAMABAD: Stressing upon the importance of civilians’ trial in military courts, Defense Ministry’s lawyer Khawaja Haris went on to state that if the court’s decision were to be implemented even Indian spies like Kulbhushan Jadhav won’t be tried in the military courts.

Haris stated this during the Constitutional Bench of the Supreme Court hearing earlier today. He said that the court, in its earlier decision, rendered Article 233 of Emergency ineffective. He said that Article 233 had no connection with military court cases, and it was only invoked for the purposes to clarify its correct interpretation of Article 8(5).

Also read: NA Speaker Ayaz Sadiq ‘regrets’ PTI leaders’ statements on negotiations

Justice Muhammad Ali Mazhar said that former military dictator Pervez Musharraf also imposed emergency.

“Fundamental rights cannot be implemented by courts during emergency,” he pointed out, adding that there is precedent of courts using its authority to ensure implement of its orders.

Justice Aminuddin said that fundamental rights can be defended in courts even during emergencies, and only enforcement is suspended. Justice Mussarat Hilali added to the debate and said that in the current case, when the accused were taken into military custody, neither fundamental rights were suspended nor the emergency was imposed.

Haris responded that under Article 233, the President can suspend fundamental rights by imposing emergency. He said, “Article 233 does not talk about suspending fundamental rights, it only talks about suspending fundamental rights in case of emergency”.

The President has the authority to suspend fundamental rights, Justice Jamal Khan Mandokhail said, adding that the executive implements the order of the President. “These powers belong to the executive, so how can anyone else look into such matters?” he questioned.

Justice Mandokhail said that former chief justice Ghulam Muhammad Mirza had had said that the arguments were valid but likewise he was not convinced. Haris, however, maintained that he believed in the supremacy of the constitution and constitution alone.

Justice Hassan Azhar Rizvi mentioned that the GHQ gate was attacked and people were martyred. “Was the trial of these terrorists held in the ATC?” he said, raising question regarding the ‘terrorists’ not been sent to the military courts.

Justice Naeem Akhtar Afghan said that there are 103 accused of May 9 incidents are in the military court, while the remaining accused are still in the district court. The could also sought District Court’s order from the Defense Ministry that directed to send accused of May 9 events to military courts.

The court said that the Supreme Court had declared Section 2d of the Army Act null and void in the central decision.

Justice Mazhar asked that what will be the overall effect of declaring this section of the Army Act null and void. “Can the case of an anti-national spy like Kulbhushan Jadhav be tried in a military court?” he asked.

Khawaja Haris responded that if that decision is implemented, then even an anti-national spy cannot be tried in a military court.

Justice Mandokhail said, “Why are we not strengthening our prosecution system?”

Justice Rizvi reiterated that the GHQ was attacked earlier and testimonies were given in that case, asking that where were all those cases being tried. “Provide data on such incidents,” Justice Rizvi said.

“The case is not about the existence of military courts, but about the authority to hear them,” Justice Hilali tried to bring the discussion back to the current case, adding “Which case will be tried in a military court and which will not be tried, how is this distinction made?”

Justice Naeem Akhtar Afghan said that the cases of the 103 accused in the May 9 incidents are being tried in military courts while others are still being tried in anti-terrorism courts. “How was this distinction made, which case will be tried in military and which in ATC? “ he said.

Justice Mandokhail said “Is any special evidence provided in military courts? Why is the ATC not being strengthened?”

Also read: PIA’s maiden flight to Paris takes off tomorrow

“Is the May 9 incident a more serious crime than terrorism?” Justice Rizvi added.

Punjab Additional Advocate General also submitted the report on keeping criminals in solitary confinement. The report said that criminals are released on the lawn after breakfast at 7:30 AM in the morning, and they stay outside until 5:00 in the evening.

The criminals have also been given mattresses, the report showed.

“You mean a homely environment?” Lawyer Faisal Siddiqui’s said in conversation with Additional Advocate General.

Justice Hilali said, “If you have made a false statement, we will also report to the Prison Reforms Committee. “I have been practicing for 30 years, why would I lie”, said the Additional Advocate General.

The court adjourned the hearing of case till tomorrow.