All five judges unanimously rejected civilians' trial by military court: Justice Mandokhail
Pakistan
Justice Mazhar remarked that the judges did not write additional notes
ISLAMABAD (Dunya News) – Justice Jamal Khan Mandokhail on Wednesday remarked that all five judges were unanimous that civilians cannot be tried in a military court.
Justice Mandokhail gave these remarks while hearing the intra-court appeal against the trial of civilians in military courts in the Supreme Court. He is part of a seven-member constitutional bench which is hearing appeal. Other members of the bench are: 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.
At the outset of the proceedings, Advocate Faisal Siddiqui argued that there are not one but three decisions by the five-member bench against military courts. Justices Ayesha Malik, Muneeb Akhtar, and Yahya Afridi wrote their decisions, and all the judges agreed with each other’s observations. If the judges' decisions are similar but the reasons are different, all the reasons are considered part of the decision, he added.
Justice Mazhar remarked that the judges did not write additional notes. Justice Mandokhail remarked that all five judges were unanimous that civilians cannot be tried in a military court.
Advocate Siddiqui said that Aziz Bhindari took the stance that the jurisdiction of the intra-court appeal is limited; but he does not agree with him. Bhindari’s reliance was on Justice Mansoor Ali Shah’s note in the Practice and Procedure case.
Justice Mazhar remarked that Justice Shah had correctly upheld the right of appeal from retrospective effect, but he disagreed with it. If the right of appeal had been granted from retrospective effect, appeals would have started coming from 1973.
Advocate Siddiqui argued that if the scope of the appeals is limited, many of appeals will be dismissed. Justice Khan remarked that a review decision is given by one judge, while an intra-court appeal is heard by a larger bench. A larger bench is hearing this case for the first time and is therefore not bound by the earlier decision.
Advocate Siddiqui said that he has complete trust in the constitutional bench. Justice Mandokhail observed that it would take three months to complete proceedings if he continued like this.
The lawyer said that the constitutional bench can declare the trial of civilians null and void without declaring the provisions of the Army Act unconstitutional.
Later, the court took a brief recess during the hearing.
After the break, Advocate Siddiqui argued that under Section 94, the discretionary power given to the commanding officer to hand over the accused is against the law.
Justice Afghan said he had been asking since day one of the hearing is there any formal order from the ATC judge to hand over the accused. The lawyer replied in the affirmative and said there are no reasons given in the order.
Justice Mandokhail questioned that whether the court has to determine on its own regarding its jurisdiction. Is it up to a party to raise an objection to jurisdiction? Justice Khan remarked that the court has to determine its own jurisdiction.
Advocate Siddiqui said if someone claims right to the Quaid’s Mausoleum, would the court say that no one raised an objection to its jurisdiction?
It is a fact that our judicial history is dark; but it is also true that our judicial history is very beautiful. Our judges have defended the rights of the people in many instances. In the F.B. Ali case, the Supreme Court gave relief. There were two charges against Ali, one of which was conspiracy.
Justice Hilali observed that there was a time when the situation in Balochistan was so critical that we had to stay in court even at night. I hope you have never witnessed such circumstances.
Advocate Siddiqui submitted that the decision to hand over civilians to military custody was wrong. An accused can be handed over to relevant authorities only after charges have been framed.
Justice Mazhar remarked that a person who applies for bail after an FIR is filed is still called an accused; he remains an accused even before charges are framed. He do not become a criminal.
The counsel submitted that it is only after charges are framed that the nature of the crime is determined, whether it relates to the Official Secrets Act or not. In the Dewan Motors case, the constitutional bench established the principle that if the ground is invalid, the proceedings cannot be held.
Justice Afghan observed that the Official Secrets Act is not included in the schedule of the Anti-Terrorism Act (ATA). Were the trials in military courts conducted under the provisions that fall under the ATA?'
Advocate Siddiqui said in his opinion, the sentences from military courts were under the Official Secrets Act. Justice Mandokhail remarked that the Armed Ordinance is also not in the ATA schedule, but if provisions from the Armed Ordinance are included with a murder charge, then the anti-terrorism court will try the case.
Justice Mazhar remarked that once a person has been tried in a military court, a retrial is not possible. It cannot happen that the military court sentences under the Official Secrets Act and then the case is sent to the anti-terrorism court.
Justice Mandokhail said that the Army Act does not even have the concept of an FIR. Advocate Siddiqui submitted that for the handover of the accused, a magistrate reviews the case and sends it to the anti-terrorism court.
Justice Khan remarked that if the petition comes directly, the anti-terrorism court judge must give reasons in their decision. Once the accused is handed over, what legal options do they have, he asked the counsel.
Justice Mandokhail remarked that a magistrate is the only one who can hand over the accused to the investigating officer. Can the investigating officer hand the accused over to someone else?
Advocate Siddiqui replied that the investigating officer does not have the authority to hand the accused over to anyone else on their own.
Later, the bench adjourned the hearing until tomorrow.
