Can civilians be tried in a military court, questions Justice Mandokhail
Pakistan
Justice Afghan observed that the decision in the FB Ali case was made under the 1962 Constitution
ISLAMABAD (Dunya News) – Justice Jamal Khan Mandokhail on Tuesday said in his remarks that if civilians have fundamental rights, can they be tried in military courts?
Justice Mandokhail asked the question during the hearing of intra-court appeal against the military trial of civilians by the seven-member constitutional bench of the Supreme Court. The bench includes Justice Amin-ud-din Khan, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Counsel for Defense Ministry Khawaja Haris submitted that Salman Akram Raja and Uzair Bhandari discussed the FB Ali case. He requested to place relevant paragraph of the FB Ali case before the bench.
Justice Afghan observed that the decision in the FB Ali case was made under the 1962 Constitution. The FB Ali case cannot be seen in the context of the 1973 Constitution.
Khawaja Haris said that the paragraph on the basis of which the arguments were given by the other side in the FB Ali case is ineffective. Justice Mandokhail asked him whether he was also challenging the FB Ali case.
He submitted that he was stating that there are no reasons for this paragraph. In the FB Ali case, it was said that military trial is right and one gets the right to a fair trial.
The court remarked that fundamental rights are not applicable in the laws under Article 8(3) A of the Constitution. Under the article those laws cannot be declared null and void in the context of fundamental rights. The 1962 Constitution has Article 6 while the 1973 Constitution has Article 8. In the FB Ali case, it was said that fundamental rights do not apply to members of the armed forces.
Justice Mandokhail said that the FB Ali case mentioned Clause D, under which civilians will get fundamental rights. How can civilians be tried in military courts in the context of the FB Ali case.
Advocate Haris replied that suppose if Article 8(3) A of the Constitution is also applied to civilians, then they will also not get fundamental rights. In this context, this plea under 184(3) would be considered inadmissible in the Supreme Court.
He contested that the FB Ali case could not have been handled the way the other side presented it in its arguments.
Justice Mandokhail remarked that the Supreme Court does not necessarily rely on the arguments of any party.
Justice Afghan observed that reference is given of the FB Ali case in the current appeal. This case cannot be linked to the current appeal. This case is the first of its kind.
Khawaja Haris argued that the question in the FB Ali case was not about fundamental rights. A retired army officer went to the Supreme Court saying that he is a civilian, he cannot be tried [in military court]. The Supreme Court had ruled that a civilian can also be tried.
Justice Mandokhail remarked that the question is simple: if civilians have fundamental rights, can they be tried in military courts? For this purpose, we have to read Article 8 of the Constitution in full. Earlier, members of the armed forces were tried in military courts. Later, Section D was included in the Army Act [to try civilians in military court].
The court remarked that trials were held in military courts where armed forces and civilians hatched a conspiracy. In criminal law, even abusing is a crime and its punishment is prescribed.
So will a trial be held in military courts for abusing members of the armed forces by a civilian?
Later, the Supreme Court adjourned the hearing of the case until tomorrow.
