ISLAMABAD: The Ministry of Defence Wednesday told the Supreme Court that the military courts ensure “fair, transparent and independent” trial of the accused and adhere to the legal procedure.
A seven-member Constitutional Bench of the Supreme Court — headed by Justice Amin-ud-Din Khan — heard the Intra Court Appeals (ICAs) of the federal government and Ministry of Defence against the apex court’s judgment declaring the civilians’ trial in military courts as unconstitutional.
The other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarrat Hilali, Justice Syed Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Continuing his arguments, Khwaja Haris, counsel for the Ministry of Defence, claimed that the military courts ensured “fair, transparent and independent” trial of the accused and adhered to the procedure required by the law.
Justice Mandokhail remarked justice should not only be done but should be seen to be done. He observed that the judge conducting military trials operated under the relevant authorities. Haris, however, contended that if someone had any evidence, then they could talk; otherwise, mere objections could not be raised.
On request of one of the bench members, Haris presented the records in sealed envelopes and distributed seven copies of military court decisions among the judges. He pleaded the court to examine the transparent trial process of the military courts adding that before the commencement of proceedings, the accused were asked if they had any objection to the presiding officer, and none raised any objections.
Justice Mandokhail, however, observed that the records should be reviewed at the appeal stage, making it inappropriate for the court to assess them at this stage.
Justice Amin-ud-Din Khan said that the Supreme Court would not let the trial be affected.
Justice Mandokhail asked on what basis, a military trail could be challenged. Haris replied that if the proceedings were held on mala fide intent or there was a lack of jurisdiction, it could be challenged.
Justice Syed Hassan Azhar Rizvi after reviewing the record of the trial observed that the May 9 cases did not appear to fall under the state security concerns. The judge noted that the military trial of suspects was conducted in detail and asked the defense ministry counsel if it was not possible to make public the whole record so that the public could also judge the conduct of accused and condemn their acts. Haris replied that the decision in this regard rested with the authorities concerned.
Meanwhile, the judges after shortly examining the trial records of military courts, returned to the counsel. At the outset of hearing, Justice Syed Hassan Azhar Rizvi asked the counsel whether an accused in a military trial was provided with a state-appointed attorney if he could not afford to hire a lawyer for defence.
Replying in the affirmative, Haris said in such a situation, a state-funded legal counsel was provided to the accused.
Justice Mandokhail remarked that the courts generally considered the accused as the “favourite child” of justice and questioned whether the same applied in military trials. Haris, however, submitted that under the Army Act rules, the accused was given full protection.
Justice Naeem Akhtar Afghan recalled that when he was the Chief Justice of Balochistan, he had heard appeals against military court verdicts.
The judge remarked that decisions were not issued on blank papers merely declaring an accused guilty or innocent adding that when cases were challenged in high courts, the General Headquarters provided complete judicial records, including evidence and procedural details.
Justice Afghan asked Khwaja Haris to cite examples from the decisions, given by the military courts in the past other than the May 9 incidents.
Similarly, Justice Syed Hassan Azhar Rizvi asked the counsel that apart from trial of any foreign country’s spy, whether the family members of the accused as well as the media had access to the military court’s proceedings. Haris replied that although the law mentioned access for families and media, sometimes security concerns restrain it.
Justice Mandokhail asked the counsel whether Article 175 of the Constitution provided for military courts. The counsel replied that revisiting the past military court rulings would be necessary if such a provision were established.
During the hearing, Bashir Mohmand and Shumail Ahmed Butt, counsel for other petitioners, also adopted the arguments of Khwaja Haris.
During hearing, when Latif Khosa, senior lawyer and PTI leader, stood up again and again to make say something, Justice Amin-ud-Din Khan told him to sit down and wait for his turn.
Justice Mandokhail observed that such a trend has set in that two judges term a verdict by eight-judge wrong. Later, the court adjourned the hearing for Thursday (today).