What is difference between Dec 16, May 9 civilians, asks SC
Pakistan
Khawaja Hussain responded that the trial would take place in an anti-terrorism court.
ISLAMABAD (Dunya News) – Justice Aminuddin Khan on Friday remarked that there was no second opinion that any law contrary to the Constitution could not remain in effect.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, is hearing intra-court appeals against the trial of civilians in military courts.
At the start of the hearing, the lawyer for former Chief Justice, Justice Jawad S. Khawaja, Advocate Khawaja Ahmad Hussain, continued his arguments, stating that ordinary civilians are not subject to military law, and the Army Act only applies to civilian employees of the Pakistan Armed Forces.
Justice Hassan Azhar Rizvi asked whether the Army Act applies in cases of attacks on airbases, while Justice Musarrat Hilali asked what the difference is between the incidents of the Army Public School (APS) attack and the May 9 protests.
Advocate Hussain responded that the APS was a terrorist attack. Justice Hilali remarked that all the victims at APS were civilian children, to which Advocate Hussain replied that their case is not outside the Constitution. The May 9 accused should not be tried in military courts.
The head of the constitutional bench, Justice Aminuddin Khan, remarked that there is no disagreement that any law that contradicts the Constitution cannot stand.
Advocate Hussain also referred to the ISPR's statement issued on May 15 regarding the May 9 incident and was asked by the court if he had any objections to the statement. Khawaja Hussain responded that he had no objection to the statement itself, but he questioned how a fair trial could be expected in military courts after such a statement was issued by the Corps Commander.
Justice Aminuddin Khan then referred to the example of Indian spy Kulbhushan Jadhav, noting that in the case of Jadhav, not only the Pakistan Armed Forces were affected. Justice Muhammad Ali Mazhar stated that if Section 2(1)(d)(2) of the Army Act were declared invalid, similar military trials could not be conducted in cases like Kulbhushan Jadhav's. Advocate Khawaja Hussain stated that the Jadhav case had not been discussed in the court's decision, to which Justice Hassan Azhar Rizvi asked what would happen if a foreign spy was captured in the future.
Khawaja Hussain responded that the trial would take place in an anti-terrorism court.
Justice Hassan Azhar Rizvi smiled and remarked that it would be strange if a law’s provision is invalidated, but exceptions are made for special remedies.
Advocate Khawaja Hussain continued his arguments, mentioning that in a Field General Court Martial, one cannot choose their lawyer unless permitted by the Army Chief. Justice Musarrat Hilali asked if they were representing the accused in this court, to which Khawaja Hussain explained that in a Field General Court Martial, the lawyer is appointed by the Army Chief, and without the Army Chief’s permission, a preferred lawyer cannot be appointed.
Justice Jamal Mandokhail remarked that how could they deviate from judicial decisions like the F.B. Ali case, in which legal provisions were upheld. The 21st Amendment decision was made by seventeen judges. He stated that it is worse to convict an innocent person than to let a hundred guilty ones go free, and that only God can deliver justice. He shared a personal experience of being a target of terrorism, where a bomb blast nearly claimed the lives of several judges in his convoy. He emphasized that without evidence, the accused must be acquitted, and if that doesn’t happen, the judiciary would be criticized.
Justice Hassan Azhar Rizvi remarked that no one can be convicted without evidence. He noted that witnesses are afraid to testify, and cases are adjourned multiple times due to lack of testimony, especially in murder cases.
Justice Jamal Mandokhail noted that the 21st Constitutional Amendment was intended for four years and led to the formation of special courts. He asked if the amendment had achieved any benefit.
Later, the Supreme Court’s constitutional bench adjourned the hearing of intra-court appeals against the trial of civilians in military courts until Monday, with Advocate Khawaja Ahmad Hussain continuing his arguments on that day.
