ISLAMABAD: The Supreme Court on Thursday remarked that Pakistan’s two Orion aircraft worth billions of rupees were destroyed, asking if the crime of May 9 was more serious than these incidents of terrorism.
A seven-member Constitutional Bench of the Supreme Court established under the 26th Constitutional Amendment headed by Justice Amin-ud-Din Khan heard intra court appeals (ICAs) filed by the federal government and Ministry of Defence against the apex court judgement declaring trial of civilians in military courts as unconstitutional.
Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.
Defence Ministry counsel Khwaja Haris, while concluding his arguments, submitted that there was no need for a constitutional amendment for the trial of a civilian in the military courts, adding that the Army Act was expanded through amendments to include additional crimes.
Referring to Article 175 of the Constitution, Khwaja Haris contended that the article does mention about the courts, not the military courts, which are established under a separate recognised law.
Justice Mandokhail observed that the powers of the courts formed under Article 175 are vast while the jurisdiction of the court formed under a specific law is also limited. The judge further added that the court in the 21st Constitutional Amendment’s case had clearly held that that military courts were formed in a war situation. “In this respect for trying civilians an amendment had to made in the Constitution,” Justice Mandokhail remarked.
Khwaja Haris contended that there was no need for the amendment for trial, adding that more crimes were included in the Army Act by amendment.
Justice Rizvi asked the counsel as to where the trial of GHQ attackers was held, remarking that Mehran and Kamra bases were also mentioned in the decision of the 21st Constitutional Amendment. Pakistan’s two Orion aircraft worth billions of rupees were destroyed, asking is the crime of May 9 more serious than these incidents of terrorism?
Khawaja Haris took the stand that all the terrorists of the Mehran Base attack were killed. Justice Rizvi asked whether there was no investigation after they were killed; who were they? Where and how did they come from? Was the file of the Mehran base attack closed after the terrorists were killed?
The senior lawyer said that the investigation would have definitely been done. The trial of the GHQ attack case was held in military courts. And the trial of the case was held before the 21st Constitutional Amendment.
Justice Rizvi said that the constitutional amendment was done on the basis of all these attacks, that there were difficulties in the trial. He asked what happened to the accused in the attack on Kamra Airbase? Where was the trial conducted? Khwaja Haris said he would take instructions and inform the court.
After the Defence Ministry counsel concluded his arguments, the federal government, through Ministry of Law and Justice, the Punjab and Balochistan governments as well as Shuhuda Foundation adopted the arguments given by Khwaja Haris. A lawyer told the court that the Khyber Pakhtunkhwa government had already withdrew the ICA against the apex court judgement. Sikandar Bashir Mohmand, counsel for the Balochistan government, appeared before the court and submitted that they also wanted to adopt the arguments of Defence Ministry’s counsel.
Justice Mandokhail questioned the appearance of the counsel.
Khawaja Ahmed Hussain, counsel for one of the petitioners former chief justice Jawad S Khawaja, while commencing his arguments, told the court that this bench and the whole Supreme Court could not shut its eyes on the protection of basic fundamental rights of citizens enshrined in the Constitution.
He submitted that Justice Muneeb Akhtar in the main judgement had held that the alleged accused of May 9 must be tried, not in military courts but in civilian courts.
“This is also our case that all those allegedly involved in May 9 incidents should be tried in civilian courts instead of military courts,” the lawyer submitted, and questioned as to why the government had not confidence in the civilian courts.
Khawaja Ahmed Hussain further questioned if the trial by the military courts were being conducted in a transparent and independent manner, then why the 21st Constitutional Amendment was made for trying terrorists? “Civilians have been tried in the military courts since 1954 which must be stopped now,” the counsel submitted.
Justice Musarat Hillali questioned as to whether a civilian and military personnel accused of a crime should be treated the same way. The counsel replied that there should be a clear distinction between the two. He said that he wanted to read Article 8(3) of the Constitution wherein it has been stated that the Army Act was exempted from the basic rights, guaranteed under this Article. “Article 8(3) of the Constitution talks about members of armed forces,” the counsel submitted, adding that the framers of Constitution, while taking about the members of armed forces, made it clear to everyone that this law does not apply to ordinary citizens.
Ahmed Hussain further submitted that if there was any exemption for ordinary citizens, the words would have been different. “This is not my case that the accused should be set free, but my case is that they should be tried, but in civilian courts, not in military courts.”
To a question, Ahmed Hussain recalled that Indian spy Kulbhushan Jadhav was granted the right to appeal in the high court through a legislation, whereas, ordinary Pakistanis are not even granted this right.
He further submitted it was said that the high court has a jurisdiction under Article 199 for hearing a writ petition against the decision of military court. He submitted that the scope for filing a writ could not be justified for basic rights as hearing, or not hearing, the writ is the discretion of high court.
Khawaja Hussain was still on his legs when the court’s time was over, so the hearing was adjourned for today (Friday).
Earlier, during the course of hearing, Justice Mandokhail clarified his previous day’s observations, stating that his remarks were misinterpreted. “I had said in a general sense that two individuals can disagree with the verdict of eight judges and I did not mean two judges,” he said, adding that his words created confusion and many retired judges contacted him about it.