No civilian can be court-martialled, Advocate Raja argues
Pakistan
Justice Mandokhail questioned whether a civilian can be court-martialled under current legal system
ISLAMABAD (Dunya News) – Advocate Salman Akram Raja on Thursday submitted before the constitutional bench of the Supreme Court hearing intra-court appeals against the trial of civilians in military courts that “civilians cannot be court-martialled under any circumstances.”
The counsel for convict, Arzam Junaid, was replying to Justice Jamal Khan Mandokhail’s question whether a civilian can be court-martialled under the current legal system.
A seven-member bench, headed by Justice Aminuddin Khan, and including justices Jamal Mandokhail, Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan, is hearing the appeals.
Advocate Raja quoted the UK law and said that court martial cases were not handled by military officers but by judges appointed in a manner similar to the high court. The commanding officer can only send a case to an independent forum if it involves a serious matter.
Justice Khan asked the counsel to focus on the Pakistani law, not the British law.
Justice Mazhar remarked that the British law pertains to the discipline of their military, while in the current case, the crime was committed by civilians. How could the British law apply to civilians?
Advocate Raja submitted that he gave the reference in the context of ensuring an independent and transparent trial.
Justice Hilali remarked that in the appeals under consideration, there was a request for the restoration of repealed provisions [of the Army Act]. If the court were reviewing the legal clauses, it must have considered international laws. Had the provisions not been repealed, the arguments could have been irrelevant, but now they are not.
Justice Hilali asked the lawyer if he acknowledged that a crime had been committed on May 9. "All hell broke loose on May 9 and you are talking about fundamental rights," the justice observed.
Advocate Raja argued that Article 184 (3) cannot be restricted and that the accused have the right to a fair trial in an independent court. He mentioned that the victims of the APS attack are still seeking justice.
Justice Khan remarked that to ensure a fair trial, one would need to move beyond Article 184 (3).
Justice Hilali said that some individuals involved in the APS incident had been executed.
Justice Rizvi questioned the lawyer should a judicial corps be established in the army like engineering and medical corps where experts in law could serve.
Advocate Raja said that depriving someone of a fair trial based on accusations is a matter of fundamental rights.
He mentioned his case before the court that he had been accused of conspiring with PTI chief Imran Khan in the killing of Rangers personnel. If certain legal provisions were reinstated, he might have to face a colonel in [military] court, he added.
Justice Mazhar remarked that anti-terrorism sections must have been invoked. Justice Khan asked whether military custody had been requested for him. Advocate Raja replied that under the system, mere accusations could lead to military trials.
Justice Mandokhail advised him not to dwell on hypotheticals.
Justice Hilali remarked that a political party had supported military courts under the 21st Constitutional Amendment, and asked Advocate Raja if his party had done so. He replied that he was not representing any political party in court. They may have made a mistake at the time; it was wrong to now criticise it.
Justice Hilali wondered how one could dismiss past actions when in opposition.
Justice Mandokhail noted that a good point in the 21st Amendment was that it did not apply to political parties.
Later, the bench adjourned the hearing until Feb 18.
