Why parliament attackers not tried in military court, asks SC

ISLAMABAD: The Supreme Court Friday adjourned until next Monday hearing in the intra court appeals (ICAs) against its judgment declaring the trial of civilians in the military courts as unconstitutional.

A seven-member bench — headed by Justice Amin-ud-Din Khan — heard the ICAs.

The other members of the bench included 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.

Khwaja Haris, counsel for the defence ministry, submitted that the Army Act and Rules provide complete procedure for a fair trial.

Justice Jamal observed that the main judgment delivered in the military court’s case included separate decisions given by Justice Muneeb Akhtar, Justice Ayesha Malik and Justice Yahya Afridi.

“Which decision of the military trial do you agree with, Justice Jamal Mandokhail asked the counsel.

Haris replied that he did not agree with any of the decisions saying Justice Ayesha Malik had termed Section 2(1) (d) (1) contrary to a fair trial, while Justice Yahya Afridi did not opine on legal sections but said he abided by the decisions of the larger benches on legal sections.

Justice Mandokhail then asked about the majority of judges in the 21st Amendment case.

Khwaja Haris replied that the court delivered the judgment by majority 8-1 declaring the amendment as valid adding that the majority of judges upheld the amendment in their own style.

Justice Muhammad Ali Mazhar asked the counsel whether any judge in the 21st Amendment case gave judicial review opinion on FB Ali case.

Khwaja Haris replied in the negative.

Justice Mandokhail observed that the crime of May 9 had been committed but the court in its decision did not give a clean chit on the crime.

“The question is as to where the trial of May 9 suspects would be held,” Justice Mandokhail remarked.

Justice Muhammad Ali Mazhar, however, observed that it was mentioned in the criminal law book adding that if an offense fits under the Army Act, the trial will be in a military court.

Justice Mandokhail observed that the 21st Amendment had declared that the cases of political parties will not be tried in the army court.

At this Khwaja Haris submitted that political activism had a limit adding that attack on the state property was not a political activity to break the security of the state.

Justice Mandokhail questioned whether the military trial against terrorists could not have been conducted without the 21st Amendment. Haris replied that legislation on the 21st Amendment was based on various other crimes and individuals.

Justice Syed Hassan Azhar observed that tearing a police officer’s uniform was a crime and here the house of Corps Commander Lahore was burnt.

The judge noted that one day there were attacks in different places at the same time adding that there were attacks on the military camp offices while the building of Radio Pakistan was burnt in Peshawar.

Justice Mandokhail observed that Parliament was supreme and questioned when it was also attacked, why was there no military trial of the people involved in.

“Doesn’t parliament consider the attack on itself an insult?” Justice Mandokhail questioned.

Justice Muhammad Ali Mazhar asked the counsel whether the attorney general had issued a notice under 27A on the provisions of the Army Act adding that it seemed from the note of Justice Yahya Afridi that the attorney general had not been heard.

At this, Additional Attorney General Aamir Rehman came to the rostrum and told the bench that the court had asked the attorney general to focus on the arguments on the May 9 and 10 incidents instead of provisions of the Army Act.

“This is strange, first, it was said not to discuss the provisions of the Army Act, then the provisions were also declared null and void, Justice Mazhar remarked.

The additional attorney general further told the bench that Faisal Siddiqui Advocate stood in the court and said that they did not challenge the provisions of the Army Act. “Have you heard this?” Justice Mazhar asked Faisal Siddiqui Advocate, who was on the video link from Karachi.

Siddiqui confirmed to the bench that he had submitted before the court that the case should be looked at under the Constitution instead of the Army Act adding that the other petitions were filed against the May 9 incidents in which provisions of the Army Act were challenged.

Khwaja Haris submitted that the federation should have been given the right to a full hearing before declaring Section 2(1)(d) (1) and 2(1) (d) (2) of the Army Act null and void.

Meanwhile, the court adjourned until Monday January 20 asked Haris to conclude his arguments.