International principles allow civilians’ court-martial: SC

ISLAMABAD: Supreme Court Judge Justice Naeem Akhtar Afghan Tuesday observed that civilians could be court-martialed and the international principles did not bar it.

This observation from the apex court judge came during the hearing of the federal government and defence ministry’s Intra Court Appeals (ICAs) against the apex court judgment, barring the trial of civilians in military courts.

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

Concluding his arguments, Salman Akram Raja, counsel for the convict Arzam Junaid, contended that civilians could not be court-martialed after abolishing their fundamental rights. He submitted that military trials violated the international standards of a fair trial which required that the trial should be held in an open court and in a transparent manner.

He submitted that across the globe, appeals against the military tribunals were filed with the civilians courts. In this respect, he cited a European court ruling, forcing several countries to reform their military trial process.

Justice Jamal Khan Mandokhel asked the counsel about the consequences for violating the international principles. Raja replied that violating international principles meant that no fair trial was ensured.

Raja replied that in United Kingdom (UK), independent judges supervised military trials but not military personnel. He submitted that in FB Ali case, the principle of separation of powers wasn’t in place adding that at that time deputy commissioners and tehsildars were conducting military trials adding that it was said that if a DC could conduct a military trial then a colonel could also do so.

Raja contended that all the countries used to submit the implementation report on international principles in the United Nations and later on the UN Committee on Human Rights after examining the report gave its opinion.

Raja submitted that last year in October and November meetings, Pakistan’s military justice system was reviewed and the UN Committee of Human Rights expressed concerns over the military trials of civilians in Pakistan.

“According to UN Committee for Human Rights, military courts in Pakistan were not independent,” Raja submitted. He recalled that Chief Justice Yahya Afridi in his dissenting note in the main judgment had held that if the trials of thousands of people could be held in special anti-terrorism courts then why not these 105 accused persons as well.

Raja submitted that he did not agree with the judgment of Justice Munib Akhtar regarding establishment of military courts. He contended that no judge could insert words in the Constitution on the basis of past circumstances that were not even part of the Constitution.

If it was allowed to do so, then it would be very dangerous,” Raja contended. Justice Mazhar observed that Justice Munib Akhtar in the majority decision considered military courts as a parallel judicial system.

Raja replied that Justice Munib Akhtar made this interpretation of the Constitution and wrote that the military courts had a historical background. Raja contended that this was a dangerous way to interpret the Constitution.

He also gave an example of a verdict given by former chief justice Qazi Faez Isa on review of Article 63-A of the Constitution adding that a principle was settled in an appeal on Article 63-A of the Constitution that own choice of words could not be added to the Constitution.

At this, Justice Jamal Khan Mandokhel told the counsel that he had praised the verdict given on the appeal on Article 63-A of the Constitution which was commendable. Uzair Bhandari, counsel for the PTI, told the court that he did not read the judgment of Justice Munib Akhtar in a manner as red by Salman Akram Raja adding that the style of everyone was quite different.

Bhandari further submitted that his Urdu teacher had once said that the meaning of a word changed while reading it.

At this, Justice Jamal Khan Mandokhel gave an example of Anarkali Bazaar wherein it was written outside a shop “Badhia Quality (Fine quality), but someone read it as “Budhia Ko Ulti Ayee” (The elderly is vomiting). This made a laughter in the courtroom. Meanwhile, Salman Akram Raja concluded his arguments and the court adjourned the hearing until today (Wednesday).