Army Act provides for fundamental rights’ protection: SC judge

ISLAMABAD: The Supreme Court was told on Wednesday that the military courts were not a part of the judicial system established under the Constitution.

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

The other members of the bench were Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.

Continuing his arguments, Abid Shahid Zubairi, counsel for petitioner Bushra Qamar, submitted that he had pointed out to the court the other day the violations made against the assurance given by the attorney general.

Zubairi contended that the five-member bench of the apex court in its judgment had mentioned the assurance given by Attorney General Mansoor Usman Awan adding that the written assurances given through civil miscellanies applications (CMAs) were part of the impugned judgment.

Zubairi submitted that the judgment had declared that civilians could not be court-martialed on civil nature offences. The counsel submitted that military courts were not a part of the judicial system established under the Constitution. He contended that the civilians belonging to the army could only be tried in military courts. “In the presence of Articles 10-A and 4 of the Constitution, civilians can’t be court-martialed,” Zubairi submitted.

He told the court that under Section 2(d) of the Army Act, Article 8(3) could not be applied to the accused persons.

Justice Muhammad Ali Mazhar observed that the word of other people was also used in Article 8(3). Abid Zubairi submitted that the military trial could not be held in the presence of Article 10-A of the Constitution. The counsel submitted that FB Ali was the hero of the 1965 war, who was accused of influencing his office after retirement.

“How can a retired person use his office?” Zubairi questioned saying General Zia-ul-Haq conducted the military trial of FB Ali and then left him in 1978. At this, Justice Jamal Mandokhail remarked that what FB Ali wanted to do, Ziaul Haq did that.

Justice Muhammad Ali Mazhar observed that the Army Act had provided complete procedures for military trials adding that the procedure protected the fundamental rights. He further said the military court had faced two objections i.e. it is not impartial and those conducting trial have no legal experience.

“If the military court is a judiciary, then it is a judiciary,” Justice Mazhar remarked. Abid S Zubairi, however, contended that military court was a part of the executive.

Justice Mazhar, however, questioned from where the executive came in the army’s work.

Zubairi replied that the army’s job was to fight on the border while Justice Jamal Khan Mandokhail remarked that the job of the army was to defend the country.

Justice Mazhar asked the counsel whether he accepted the military court adding that if he accepted it, then the result would be something else. Justice Mazhar further observed that Justice Muneeb Akhtar had not written the judiciary as military court.

“To-date, no matter how many decisions, there is no clarity regarding the military court,” Justice Mazhar remarked. Addressing the counsel, the judge said, “First, accept the military court as judiciary and then talk about separating the court.” Justice Mazhar remarked that the armed forces were not a part of the judiciary adding that it was not mentioned in any judgment that military court was the judiciary.

Similarly, Justice Mandokhail observed that there was no military court in the law but the word “court martial” had been used.

Meanwhile, the arguments of Abid Shahid Zubairi concluded and the court adjourned the hearing for today (Thursday) wherein Hamid Khan, counsel for Lahore High Court Bar Association, will commence his arguments.