ISLAMABAD: The Supreme Court (SC) on Monday questioned if there was no distinction between a terrorist and an ordinary civilian. A seven-member Constitutional Bench of the Supreme Court headed by Justice Amin-ud-Din Khan heard intra-court appeals (ICAs) against the apex court’s 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 Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhter Afghan and Justice Shahid Bilal Hassan.
During the course of hearing, Khwaja Ahmed Hussain, counsel for former chief justice Jawwad S Khawaja requested the court to withdraw the order imposing the fine of Rs20,000 on his client.
The counsel contended that his review petition had become infructuous since the Constitutional Bench had already heard most of the case in hand; therefore, the penalty imposed on his client should be withdrawn.
Justice Amin-ud-Din, after consulting with fellow judges, told Khawaja Ahmed Hussain that the court had decided to dispose of the matter based on the withdrawal of the review. It is pertinent to mention here that on January 6, former chief justice Jawwad S Khawaja had filed a review petition against the order of Constitutional Bench rejecting his plea seeking postponement of hearing in ICAs related to the trial of May 9, 2023 violence suspects in military courts until the legal validity of the 26th Constitutional Amendment was not determined. The former chief justice had prayed the apex court to get back its observation that the plea was filed with mala fide intent as well as imposing fine of Rs20,000.
The Constitutional Bench, on December 9, 2024 had dismissed the plea of Justice Jawwad S Khawaja and imposed a fine of Rs20,000 on his plea for seeking unnecessary adjournment.
Earlier, concluding his arguments, Khawaja Ahmed Hussain contended that trial of civilians could not be conducted in military courts under any circumstances, arguing that military courts did not meet the requirements of a fair trial guaranteed under Article 10-A of the Constitution.
The counsel while substantiating his arguments submitted that in the main judgement of the apex court, the five judges had different opinions with regard to transparency during the process of trial in the military courts.
Justice Rizvi asked the counsel as to whether there was no distinction between a terrorist and an ordinary civilian. Ahmed Hussain replied that he was not defending any terrorist or accused person, but added if the civilians could be court-martialed, the 21st Constitutional Amendment would not have been made.
At this Justice Rizvi told the counsel that through the amendment, certain crimes were added to the Army Act. Khawaja Ahmed Hussain, however, contended that if court-martial had been possible before the amendment, the court would have to declare that the 21st Constitutional Amendment was unnecessarily.
Justice Mandokhail remarked that the basic question before the court was to determine as to who falls within the jurisdiction of Army Act. He questioned as to whether attacks on the Parliament House and Supreme Court would be tried in anti-terrorism courts (ATCs), while an attack on the General Headquarters (GHQ) would be handled by military courts.
Justice Mandokhail said that in his view, all the three attacks should be treated equally. Ahmed Husain submitted that one issue before the court was about basic fundamental rights, while the second related to national security, adding that as to if the court is to create balance between the two, basic fundamental rights are protected.
The counsel further submitted that if the main judgement of the apex court in the matter is upheld, neither any accused nor any terrorist would get benefit, adding that anti-terrorism law was there wherein all provisions, including protection of witnesses, had been mentioned.
Concluding his arguments, he contended that the court in any manner, could not handover the civilians from transparent trial to any contrary system.
Meanwhile, Salman Akram Raja, counsel for another petitioner, while commencing his arguments, submitted that around the world, civilian trials through military courts are being considered tantamount to destroying the Constitution.
He submitted that the meaning drawn by the counsel of Ministry of Defence from FB Ali’s case was astonishing. Raja contended that FB Ali case did not say that basic constitutional fundamental rights could not be applied on the provisions of Army Act, adding that FB Ali case talked quite opposite to that.
He further submitted that in 1987, Article 175(3) had been inserted in the Constitution after which there was no space left for executive court. Raja submitted that identical FIRs were lodged in May 9 incidents, however, custody of some accused was given to the Army.
At this, Justice Amin-ud-Din observed that the matter was not before them. But Raja replied that it was before the court. Meanwhile, the court adjourned the hearing for today (Tuesday) wherein Raja would continue his arguments.
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