No disagreement: Army Act a valid law, says SC judge

ISLAMABAD: Supreme Court’s Justice Jamal Khan Mandokhail noted on Thursday that there is no disagreement that the Army Act is a valid law; however, he questioned why trials are not conducted in regular courts.

A seven-member constitutional bench of the Supreme Court headed by Justice Aminuddin Khan heard the Intra Court Appeals (ICAs) of the federal government and the Ministry of Defence against its judgment declaring trials of civilians in military courts as unconstitutional.

Khwaja Haris, counsel for Ministry of Defence, while continuing his arguments in rebuttal submitted that if the crime is related to the Defence of Pakistan or the Defence Service of Pakistan, the trial will take place in a military court.

At this, Justice Mandokhail asked the counsel about the definition of Defence of Pakistan, observing that if one goes by the definition of the Defence of Pakistan, then even the Supreme Court and the Parliament fall under that definition.

“Even railway stations could be considered as part of the Defence of Pakistan,” Justice Mandokhail remarked.

He further asked the counsel for the Ministry of Defence as to whether cases are referred to military courts because they award harsher punishments.

The judge noted that the Official Secrets Act has existed in Pakistan since the beginning and questioned as to whether cases go to military courts because they impose stricter punishments.

“Why are trials not conducted in regular courts,” Justice Mandokhail questioned. The judge observed that there is no disagreement that the Army Act is a valid law.

When questioned as to why there is no independent forum for military trials, the defence ministry’s counsel replied that the Constitution says that military trials cannot be assessed through the lens of fundamental rights.

At the outset of hearing, Justice Naeem Akhtar Afghan pointed out that many cantonment areas have shopping malls and other commercial activities, and access to such places is not allowed without a permit.

Justice Afghan questioned if someone tries to go there without permission, would the trial then take place in a military court? Justice Muhammad Ali Mazhar observed that there are six to seven cantonment areas in Karachi, but it is not like the main roads have been declared prohibited areas.

At this, Justice Syed Hasan Azhar Rizvi added that five to six judges of the Supreme Court reside in Clifton Cantonment, and there is no area there that has been officially notified as restricted. At this point, Justice Mandokhail shared that he was once denied entry into a cantonment area because he did not have a permit.

During the hearing, Justice Aminuddin Khan observed that nobody has challenged the part of Article 175 of the Constitution.

Khwaja Haris submitted that Salman Akram Raja had confined his arguments totally towards Article 175 of the Constitution.

Justice Mandokhail asked Haris as to apart from Article 175, whether military trial of civilians is allowed.

Khwaja Haris replied that the court had discussed all these things in details in Mahram Ali and Liaqat Hussain’s case.

Haris added that the point related to armed forces had emerged from FB Ali’s case.

At this, Justice Mandokhail observed that they are saying from the day first that what was lacking in FB Ali’s case, still exists. Later, the court adjourned the hearing until next Tuesday.