ISLAMABAD: Supreme Court Justice Jamal Khan Mandokhail has asked if Article 8(3) of the Constitution that allows exemption from fundamental rights can be applied to civilian accused or is limited only to the armed forces personnel. Khawaja Haris replied that the law can be extended to the civilian accused.
This interaction took place on Tuesday during the hearing of the federal government’s intra-court appeals filed in the Constitutional Bench of the Supreme Court against the court order regarding the trial of civilian accused involved in the May 9 terror and arson attack by PTI workers, in military courts.
A seven-member constitutional bench headed by Senior Judge Aminuddin Khan and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan heard the case on Thursday.
Justice Jamal Mandokhail remarked that the Army Act was made only to keep the army in discipline. Article 8(3) of the Constitution allows exemption from fundamental rights. The question is whether this exemption is limited only to the armed forces personnel or can its jurisdiction be extended to civilian accused. Replying to Justice Jamal Mandokhail, the lawyer for appellant Ministry of Defense, Khwaja Haris Ahmed, said it is the job of parliament to decide to whom and how the law should be applied. Justice Jamal Mandokhail said in my opinion, the Constitution is supreme instead of parliament because parliament is also subject to the Constitution. The learned counsel took the stand that instead of a single clause, we should look at the Constitution in its overall context. What will be the criteria for the application of a law is the job of parliament to decide and not the judiciary. The learned judge inquired whether the parliament can also add more clauses for civilian accused in the Army Act tomorrow. To this, Khawaja Haris said that this question is not before the court at this time.
Justice Jamal Mandokhail remarked that Article 8(3) provides for exemption from fundamental rights. The question is whether this exemption is limited to the armed forces only or can its jurisdiction be extended to civilian accused. Khawaja Haris said the civilians can also be brought under it. At this point, Justice Jamal Mandokhail said, “Let us assume that under the 1962 Constitution, civilian accused could have been tried in the FB Ali case, but the question is whether the court martial of civilian accused in military courts is in accordance with the 1973 Constitution? Is this court martial following Article 175(3) and Article 10A?” The learned counsel said, “We must first determine what are the defects in the challenged decision.” It will also be necessary to see what new points are to be settled in this appeal.
Justice Jamal Mandokhail said we agree with you to the extent of Article 8(5). However, Justice Musarrat Hilali, addressing the counsel for the Ministry of Defence, said that we do not agree with you. She added that this case has been going on for the past one year and I am not getting an answer to the question, if the military courts fall under the category of Article 175? Is a military court also a court of the same standard as a regular court?
During the hearing, Justice Hassan Azhar Rizvi asked the learned counsel how much more time he would require. He said that he thought that he would complete the arguments on four points in four more days. If the hearing lasts for half a day, it will take another eight days.
To which Justice Jamal Mandokhail said that in reply, no one takes that much time. The learned counsel replied that the opposing parties have raised new points, I need to answer them. Later, the court adjourned further hearing of the case until April 7.