Civilians' trial in military court: Is May 9 more serious than terrorist attacks, asks Justice Rizvi
Pakistan
Justice Mandokhail clarified he had said that two people call the decision of eight judges wrong
Justice Mandokhail said some media people misquoted him
ISLAMABAD (Dunya News) – Justice Jamal Khan Mandokhel observed on the Thursday that his remarks during the hearing of the intra-court appeals against the trial of civilians in military courts on Wednesday was misquoted.
Justice Mandokhail is part of a seven-member constitutional bench of the Supreme Court which is hearing the appeals.
Headed by Justice Amin-ud-din Khan, the other members of the bench are justices Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
The justice observed that his remarks were reported in the media that two judges called the decision of eight judges wrong. “Many judges contacted me regarding this news. I do not care about the media, but the record should be straight,” Justice Mandokhail added.
He said that he made this statement in a general sense. He had said that two people call the decision of eight judges wrong. “In my yesterday’s observation, I mentioned individuals, not judges. Some media colleagues misquoted it,” the justice clarified.
TODAY’S PROCEEDINGS
Continuing his arguments, Defense Ministry's counsel Khawaja Haris Articles 175 of the constitution deals with the setting up and functioning of courts. The military courts do not come under the purview of the article, he added.
Military courts are formed under a separate law, the counsel said.
Justice Mandokhail observed that the powers of the courts formed under Article 175 are extensive. The jurisdiction of the court formed under a specific law is limited.
The 21st amendment decision clearly states that military courts were formed in a war situation. The constitution had to be amended to try civilians, the justice remarked.
Advocate Haris argued that there was no need for an amendment for the trial of civilians. More crimes were added to the Army Act through the amendment.
Justice Rizvi observed that the 21st amendment also mentioned attack on Mehran and Kamra bases. Where was the trial of those who attacked the GHQ held, he questioned the counsel.
Two aircraft worth billions of rupees were destroyed [in the attack on Mehran naval aviation base in May 2011]. Is the crime of May 9 more serious than these terrorist attacks? Justice Rizvi asked Advocate Haris.
The counsel replied that all the terrorists who attacked the Mehran base had been killed. Justice Rizvi inquired whether there was no investigation after that; who they were, where they came from and how? Did the file of the Mehran base attack case close after the terrorists were killed?
Advocate Haris said that he assumed the investigation must have been done.
He said that the trial of the GHQ attack case was held in military courts. The trial was held before the 21st Amendment.
Justice Rizvi remarked that the amendment was made on the basis of all these attacks because there were legal restrains in the trial [in military courts]. He asked Advocate Haris what happened to the accused of the Kamra base attack? Where was their trial held?
The counsel replied that he would inform the court after getting instructions and informed the bench that he has completed his arguments. The additional attorney general submitted that he adopted Khawaja Haris' arguments.
Later, the court adjourned the hearing for half an hour.
When the hearing resumed, Balochistan government counsel Sikandar Bashir Mohmand came to the rostrum. Justice Mandokhail raised a point that how he could represent the provincial government.
Justice Mazhar asked him to quote some rules of business or law under which a private lawyer is allowed to represent the government. Advocate Mohmand replied that there are Supreme Court decisions in which private lawyers are allowed.
Justice Mandokhail asked him to read paragraph 122 of the 21st Constitutional Amendment decision. The crimes of attacks on military installations were allowed to be tried in military courts for four years. Initially, the provision was for two years and it was extended for two years.
He questioned the counsel whether Section 21 D 2 of the Army Act stood restored in the context of the amendment?
Justice Amin-ud-din Khan remarked that the Official Secrets Act was amended to include crimes. Justice Mandokhail said that Section 21 D 2 was not discussed in any court decision. The section is for specific individuals, while the Official Secrets Act applies to all citizens of the country without discrimination.
The Punjab and Balochistan governments, the Ministry of Interior, the Ministry of Law and the Shuhada Foundation also adopted Khawaja Haris' arguments.
JAWAD S. KHAWAJA'S COUNSEL STARTS ARGUMENTS
Former chief justice Jawad S. Khawaja's counsel Ahmed Hussain submitted that there is a provision for filing a writ in the high court against the decision of a military court. It is high court’s discretion to hear it or not.
Justice Hilali asked whether there should be difference between a civilian accused and an accused serving with the forces.
She added that the constitution protects the fundamental rights of a civilian; the constitution is the supreme law.
Advocate Hussain replied in the affirmative. A person who joins the armed forces has consented to be subject to the Army Act. The case of a civilian is different.
He sought permission to read subsection 3 of Article 8 of the constitution under which armed forces, police and other agencies are exempt from fundamental rights.
He said that the article mentions "members" of the armed forces. The framers of the constitution made everything clear. It is clear that this law does not apply to ordinary citizens. Had they decided to include ordinary citizen under the provision, they would have mentioned that.
Advocate Hussain acknowledged Justice Mandokhail’s observation on the Article 8 and said there will be no trial of civilians there [in military court].
He said the second point is that if a civilian conspire to commit a crime [against armed forces], his trial can take place [in military court]. The words of “conspiracy” are not in the constitution or law, but only in a decision, he added.
Later, the court adjourned the hearing until tomorrow (Friday).
