PTI govt made amendment to Army Act very actively: Justice Afghan

ISLAMABAD: The judges of constitutional bench Wednesday raised interesting questions during the hearing of military court case.

The seven-member constitutional bench, headed by Justice Aminuddin Khan, heard the intra-court appeals (ICAs) of the federal government and the defence ministry against the apex court judgment, declaring trial of civilians in military courts as unconstitutional.

Other members of the bench included Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarat Hilali, Justice Syed Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Salman Akram Raja, counsel for convict Arzam Junaid, continued his arguments.

During the hearing, Justice Naeem Akhtar Afghan diverted the attention of Salman Akram Raja towards an amendment made to the Army Act by the previous government of Pakistan Tehreek-e-Insaf (PTI).

“Please don’t mind as I am asking in a lighter vein,” Justice Afghan told Raja, adding that nowadays he was associated with a political party and when his party was in the government, the parliament made an amendment to the Army Act very actively.

Salman Raja, however, replied that at that time, he was not a part of the PTI, adding that he always remained on the opposition side.

Similarly, Justice Jamal Khan Mandokhail asked the counsel as to whether the Army Act would also be applied to a member of armed forces for committing an offence even sitting at home.

Salman Raja replied that the law would be applied keeping in view the nature of the case, adding that as kite flying is banned in Punjab, but if a member of the armed forces flies a kite at his home, his offence will not fall under the jurisdiction of the Army Act but the civilian laws.

Justice Mandokhail further asked Raja as to whether merging fundamental rights with a specific act could lead to their violation. The judge asked if a soldier, marrying a second time without his first wife’s consent, would be tried in a military court after throwing him under Article 3. Raja replied that same was done in the FB Ali case where Article 3 was applied, adding that as far as fundamental rights were concerned, doors could not be closed on it.

Salman Raja termed the Army Act a black hole, adding that any amendment made to it could compromise fundamental rights. “For an offence to fall under the Army Act, the offence must be directly related to military service,” Raja submitted.

The counsel also referred to 1975 FB Ali case, where Section 2(1)(d) of the Army Act was first discussed. Justice Muhammad Ali Mazhar, however, asked the counsel as to why the apex court repeatedly reviewed Article 2(1)(d). Raja replied that legal frameworks evolve, necessitating judicial review. Justice Naeem Afghan observed that an ordinance for Article 2(1)(d) was introduced in 1967 and questioned whether its expiration rendered it obsolete. Salman Raja replied that he would check it during the court break.

Justice Jamal Mandokhail observed that in the civil services, employees found guilty of misconduct are dismissed but not punished; however, in the armed forces, personnel could face dismissal and legal penalties. Justice Muhammad Ali Mazhar asked the counsel if a spy is arrested, where should he be tried. Similarly, Justice Hassan Azhar Rizvi asked the counsel as to where a citizen would be tried if they leaked secrets to enemy states. “Such trials fall under the Official Secrets Act, which outlines a legal procedure for prosecution,” Salman Raja replied and assured the bench that he would not present arguments contrary to the Constitution, saying that fundamental rights could not be revoked arbitrarily.

Justice Muhammad Ali Mazhar observed that a five-member bench had already struck down Section 2 (1)(d), ruling that espionage suspects could no longer be tried in military courts. The judge, however, observed that there are also civilians in the army and if a civilian in garb of citizen spies for an enemy state, then where trial of such an employee would be held. Raja replied that civil employees belonging to the army also fall under the Army Act. During the hearing, Barrister Aitzaz Ahsan told the bench that he had represented Major Ishtiaq and Ayaz Sipra in the FB Ali’s case, adding that at that time, trial was held in the Attock jail. He submitted that after the trial, the whole record was set on fire, adding that while leaving the Attock Fort after the trial, they had to undergo body search.

Justice Musarat Hilali observed that it was an era of martial law, while Salman Akram Raja told the bench that he had to go through the process as a lawyer in Adiala jail daily. Justice Aminuddin Khan asked Raja to limit his arguments to the extent of the case in hand. Later, the court adjourned the hearing until Thursday (today).