ISLAMABAD: The Supreme Court adjourned for Thursday (today) hearing of the military courts case.
A seven-member constitutional bench of the Supreme Court, headed by Justice Aminuddin Khan, heard the intra-court appeals (ICAs) of the federal government and the Ministry of Defence against its judgment, declaring trials of civilians in military courts as unconstitutional.
Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hasan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal.
Khawaja Haris, counsel for the defence ministry, continued his arguments in rebuttal and faced volley of questions from judges on protection of fundamental rights of civilians, being tried in military courts as well as their right to appeal.
During the hearing, Justice Naeem Akhtar Afghan, while raising a question over the court martial of civilians without changing the Constitution, remarked that trying civilians under military law needed constitutional amendment. “An amendment to Constitution was required for court martial of the civilians,” Justice Afghan remarked.
The counsel, however, contended that both civilians and military personnel were equal citizens under the Constitution, adding that there was no division between the armed forces and civilians.
Khawaja Haris submitted that if military personnel could be tried, so could be civilians. Justice Jamal Mandokhail stressed that the issue was not how serious the crime was, it may very well be a severe and terrifying crime. “Even if a terrorist commits a crime, does he not have fundamental rights,” Justice Mandokhail questioned.
At this Khawaja Haris contended that fundamental rights of military personnel were also suspended. “Aren’t they Pakistani citizens,” Khawaja Haris asked, to which Justice Mandokhail replied that military members willingly join the army, knowing their fundamental rights might be limited, adding that suspension of fundamental rights was connected to the nature of crime. “It’s also a soldier’s choice whether or not to commit a crime,” Justice Mandokhail remarked.
Justice Hassan Azhar Rizvi observed that those conducting trials in military courts might not even know the law of evidence (Qanoor-e-Shahadat Order 1984). He added that in military courts, evidence could be misread or misinterpreted, casting doubt on fairness of the process.
Referring to the right to appeal, Justice Hilali asked if the government grants civilians the right to appeal, what problem would it cause. Justice Jamal Khan Mandokhail observed that even they could not view the trial records of military courts. The judge questioned whether the government was granting the right to appeal or not.
“How can the complainant conduct the trial himself? Do you want to dismantle all institutions,” Justice Mandokhail questioned, adding that people only trust 50pc of the judiciary decisions. He further questioned as to what happens if courts are completely abolished.
During the hearing, Attorney General Mansoor Usman Awan submitted that he came to know through the Additional Attorney General that the court had summoned him. He submitted that “when a court martial trial is conducted, there is a complete procedure in place”, adding that the complete record of how a military trial was conducted was available with the court. “If someone is sentenced to death, the execution is not carried out until the appeal is decided,” the AG contended.
Justice Jamal Mandokhail remarked that they were talking about the right to appeal, because it was a fundamental right. The Attorney General submitted that he would speak further once Khawaja Sahib concluded his arguments. He further submitted that Section 3 provided for the right to a fair trial and legal representation.
Justice Mandokhail noted that the Constitution provided for fundamental rights. “That is the core issue before us right now,” he added.
Mansoor Usman submitted that when the issue came before the full court, it was after the 18th Amendment, adding that the court itself had proposed three options at that time. “Those three options are still available and just tell us as to whether the right to appeal exists or not,” Justice Mandokhail asked the AG.
Justice Muhammad Ali Mazhar observed that their focus at that time was not on the appeal. Justice Mandokhail questioned as to what the issue was “if we are granting the right to a fair trial”.
Later, the court adjourned the hearing for today wherein Khawaja Haris will continue his arguments in rebuttal.
