Armed forces are not a part of judiciary, observes Justice Mazhar
Pakistan
Justice Mazhar remarked that two objections are raised to the military court
ISLAMABAD (Dunya News) – Justice Mohammad Ali Mazhar on Wednesday observed that the Armed Forces are not a part of the judiciary, and no judicial decision has stated that a military court is part of the judiciary.
Justice Mazhar gave the observation during hearing of intra-court appeal against trial of civilians in military. The justice is a part of seven-member constitutional bench of the Supreme Court which comprises justices Amin-ud-din Khan, Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan, Jamal Khan Mandokhail and Shahid Bilal Hassan.
Counsel for former office-bearers of the Supreme Court Bar Abid Zuberi argued that the military court is part of the executive. Justice Mazhar asked him what is the duty of the army? How can you declare it a part of executive?
Advocate Zuberi submitted that the duty of the army is to fight on the border. Justice Mandokhail remarked that the duty of the army is to defend the country.
He remarked that two objections are raised to the military court. One is that military trials are not impartial. The other is that those who are conducting the trial, lack legal experience.
Justice Mazhar asked him whether he considered the military court as the judiciary? If your reply is in the affirmative, then the results will be different. Justice Munib did not write the military court as the judiciary.
The justice observed that the Army Act provided a complete procedure for military trials. It prescribes a procedure that protects fundamental rights. If the procedure is not followed then the law is redundant.
Advocate Zuberi said that General Zia-ul-Haq conducted a military trial of FB Ali and set him free in 1978. Justice Mandokhail remarked that the general did what FB Ali wanted to do.
Later, the court ordered a short break.
When the hearing resumed, Advocate Zuberi argued that the court has declared in its decision that civilians cannot be tried by court martial for civil crimes. Military courts are not part of the judicial system formed under the Constitution. Only those people can be tried in military courts who are part of the army. Under Article 10A and Article 4, a court martial of civilians is not permissible. Article 8’s sub-clause 3A does not apply to the accused under Section 2D.
Justice Mazhar remarked that the word “other persons” has also been used in sub-clause 3A of Article 8. Advocate Zuberi said that under Article 10A, a military trial cannot be held. Justice Muhammad Mazhar questioned him how will you try cases involving conspiracy.
Justice Mandokhail observed that the words “military court” is not mentioned in Section 2D. the clause provided that there will be a trial, it is not written which forum the hold the trial.
Zuberi submitted that the law was amended to include the crime of attack on military installations in the list of crime to be tried by military court.
Justice Rizvi observed that the attacks are continuing. Yesterday there was an attack in Bannu Cantt. Justice Mandokhail remarked that if there is evidence, the anti-terrorism courts also hand down punishments to the criminals.
Justice Mandokhail remarked that the word “court martial” has been used in the law, not military court. Justice Mazhar said that no court decision has declared that the military court is a judiciary.
Later, the court adjourned the hearing until tomorrow. Lahore Bar counsel Hamid Khan will present his arguments as Advocate Zuberi concluded his submission.
