Civilians cannot be court-martialled under any circumstances, argues counsel for appellant
Pakistan
If civilians could be court-martialed, the 21st amendment would not have been necessary
ISLAMABAD (Dunya News) – Advocate Khawaja Ahmed Hussain, the counsel for appellant Justice (R) Jawad S. Khawaja, said on Monday that civilians cannot be court-martialled under any circumstances; the procedure of military courts is contrary to the provision of a fair trial.
Advocate Hussain was arguing before a seven-member bench of the constitutional court of Supreme Court during the hearing of intra-court appeals against the trial of civilians in military courts.
Headed by Justice Amin-ud-din Khan, the bench included justices Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Advocate Hussain submitted that all five judges of the Supreme Court who gave verdict against the trial of civilians in military court did not agree that the trial procedure in military courts is transparent.
Justice Rizvi questioned him that is there no difference between those who carry out [bomb] explosions and ordinary civilians? Advocate Hussain responded that he was not arguing in defense of any terrorist. If civilians could be court-martialed, the 21st constitutional amendment would not have been necessary.
The court remarked that the 21st Amendment only included certain crimes under the Army Act, to which Advocate Hussain replied that if the amendment to the Army Act had made court-martial possible, there would have been no need for a constitutional amendment. He argued that if court-martial was possible, the court would have to declare the 21st Amendment unnecessary.
The counsel submitted that the Article 175 of the constitution was amended. There is no concept of bail until a decision is made by military courts. Justice Rizvi responded that there was no need of bail if a decision is pronounced within 15 days.
Advocate Hussain replied that in military courts, appeals do not go to an independent forum; and defendants cannot choose a lawyer.
Justice Mazhar asked the counsel to limit his arguments to whether the decision was correct or not.
Justice Rizvi told Advocate Hussain that he gave the reference of Sheikh Liaqat Hussain case, where there was no direct conflict between the public and the army at the time. There was apparently an incident happened in Karachi where a major was abducted.
Justice Mandokhail remarked that political parties were excluded in the 21st Amendment, and the only question before the court is the application of the Army Act.
The court raised a question that in case a terrorist attack on parliament, the Supreme Court, and the GHQ, the trial for the attacks on Parliament and the Supreme Court would take place in the anti-terrorism court, but the attack on GHQ would go to a military court. All three attacks are the same, so why and how are they being differentiated?
Advocate Hussain requested the court not to open the door for civilians to be tried in military courts. Justice Ameen-ud-Din Khan remarked "we are not opening any doors; we are only determining whether the appeal will be accepted or rejected."
Khwaja Hussain mentioned that the Ministry of Defence's counsel argued that under Article 184(3), the appeal was not admissible. The lawyer stated that where Article 8, sub-clause 3A applies, the application is admissible. If Article 184(3) cannot apply in this case, it cannot apply in any other case either.
Advocate Hussain said that Justice Yahya Afridi has always advocated for the cautious use of the jurisdiction under Article 184(3). In military courts, he had also opined that a direct petition was admissible under Article 184(3). He added that he would also argue the Brigadier (R) Farrukh Bakhat Ali case today.
Justice Hilali remarked that she came to know the full name. “We only knew it by the name of the FB Ali case."
The counsel explained that FB Ali was accused of waging war against the country and inciting the army to revolt. His court-martial was conducted by Major General Zia-ul-Haq in 1974. The brigadier was accused of attempt to overthrow Bhutto's government. The one who conducted the court-martial, Zia-ul-Haq, later rose to become the Army Chief. What happened after Zia-ul-Haq became the Army Chief is part of the country’s history.
Justice Rizvi remarked that during that time, even the Commander-in-Chief and the Air Chief were abducted. The abductor had written the reasons for this in a book.
Justice Hilali asked Justice Azhar what were the reasons. He asked the justice to read the book; and his advice prompted laughter in the courtroom.
Justice Hilali then asked what happened with the 21st Amendment. Advocate Hussain responded that the amendment was extended for two years and ended in 2019. She raised a point how court-martial is taking place in the current cases after the 21st Amendment has ended.
The lawyer answered that in the case of May 9 mayhem, the Official Secrets Act was applied.
Justice Hilali asked him whether protest is a crime in this country. Advocate Hussain replied that it’s not, but damaging property is.
The question is; if there is no court-martial, will the accused be set free? The answer is; no, because the Anti-Terrorism Act is there.
Later, the court adjourned the hearing for a brief period.
When the hearing resumed, Advocate Hussain stated that Pakistan was founded through the efforts of a lawyer, Muhammad Ali Jinnah. This constitutional bench was sitting under his portrait. The judiciary had made decisions in the past that the nation had to endure the consequences of.
He pleaded that the decision be upheld while dismissing the appeals. He said that his client had been fined Rs20,000 and they had filed a review petition against the order. He requested that the fine be withdrawn.
Justice Mazhar, in a lighter vein, remarked to double the fine.
Advocate Hussain submitted that their petition had become ineffective as the bench had already heard the case.
Later, the bench withdrew the order imposing fine on ex-chief justice Jawad S. Khawaja adjourned the hearing until Tuesday. Barrister Salman Akram Raja will begin his arguments tomorrow.
