Army Act provisions cannot be declared unconstitutional: Supreme Court Bar
Pakistan
The Rawalpindi Conspiracy case was tried and decided by a special tribunal, not a military tribunal
ISLAMABAD (Dunya News) – The Supreme Court Bar, in its written submissions before the constitutional bench hearing intra-court appeal against the trial of civilians in military court, stated that the provisions of the Army Act cannot be declared unconstitutional.
In its submission on Thursday, the Supreme Court Bar Association stated that civilians should not be tried in military courts. The provisions of the Army Act have been upheld in various judicial decisions. Therefore, they cannot be declared unconstitutional.
A seven-member constitutional bench, headed by Justice Ameenuddin Khan, is hearing the intra-court appeal. The bench includes Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Hamid Khan, the counsel representing the Lahore Bar Association and the Lahore High Court Bar Association, began his arguments by referencing the tenure of former Chief Justice Umar Ata Bandial and claimed that PTI founder Imran Khan was arrested from the Islamabad High Court premises.
Justice Mandokhail interrupted him and asked him to address whether civilians can be tried in military courts or not.
Advocate Khan responded that the Army Act came into force in May 1952, at a time when the Government of India Act was in effect in Pakistan. The first constitution was introduced in 1956 which gave, for the first time, fundamental rights to the citizens. The first amendment to the Army Act was done in 1967. The first case under the law was registered in 1951 which is known as “Rawalpindi Conspiracy Case.”
Justice Rizvi remarked that prominent figures like Faiz Ahmad Faiz were named in the case.
Hamid Khan submitted that to prosecute the accused, the Rawalpindi Conspiracy Special Trial Act of 1951 was introduced. It was alleged that the accused, who included civilians and General Akbar Khan, were aiming to bring in communist system of governance in the country.
The Rawalpindi Conspiracy case was decided by a special tribunal, not a military tribunal, he added.
Justice Mandokhail asked him whether the Army Act had been enacted in 1951, to which Hamid Khan responded that 1911 Military Act was in vogue.
Justice Mazhar asked whether the special tribunal was specifically formed for the Rawalpindi Conspiracy Case trial. Advocate Khan submitted that he intended to raise a point that the trial was held in a special tribunal, not a military tribunal.
He said that military courts were first established in 1953 when riots broke out in Lahore and martial law was imposed within the city limits. Military courts were set up to try those involved in riots, including prominent personalities like Maulana Abdul Sattar Niazi and Maulana Maududi.
Justice Rizvi remarked that they were later pardoned.
Justice Mandokhail asked him about the relevance of military court to martial law. He remarked that the constitution does not allow martial law.
Hamid Khan responded martial law had been imposed and the Supreme Court's ruling failed to block clamping of martial law.
Justice Mazhar remarked that there is no mention of martial law in the constitution as it is an extra-constitutional measure.
