Can all civilians be treated like criminals who attacked APS, questions Justice Hilali
Pakistan
Justice Mandokhail asked if the military court will try those [civilians] who attack army soldiers
ISLAMABAD (Dunya News) – Justice Musarrat Hilali on Wednesday remarked that the trial of civilians in military courts was for the criminals like who attacked APS. Can all civilians be treated the same way?
She gave the remark during the hearing of a case related to civilians’ trial in military courts by the Constitutional Bench of the Supreme Court.
Justice Hilali said the Constitution of Pakistan is not suspended. The lawyer replied that fundamental rights remain, and there are court decisions.
She asked the lawyer whether all fundamental rights are suspended when one comes under the Army Act.
Justice Jamal Mandokhail asked if the military court will try those [civilians] who attack army soldiers. Khawaja Haris responded that this case is not about determining who can be tried in the future.
Justice Mandokhail remarked that it is said that the parliament is supreme, “but in my opinion the Constitution is supreme.”
The justice observed that parliament indeed has the power to make laws defining what constitutes a crime. If parliament wishes, it can make a law stating that looking at someone with a crooked eye is a crime. Parliament also has the constitutional responsibility to establish the court where this crime will be tried. The Constitution of Pakistan grants parliament this authority and responsibility.
As proceedings started, Khawaja Haris, the counsel for the Ministry of Defense, argued that the judicial decision is based on Articles 8(5) and 8(3), and that both sub-articles are entirely different and cannot be combined.
Justice Mandokhail stated that according to the Constitution, rules can be suspended but not abolished, and rights cannot be suspended under Article 5.
Khawaja Haris argued that Article 233 has two parts: one deals with the Armed Forces and the other with civilians.
The counsel read the decision which declared the military trial of civilians void and stated that the F.B. Ali case had already settled that civilians could also be tried by military courts. He argued that the majority decision misinterpreted Articles 8(3) and 8(5).
He said that it was wrongly stated that the F.B. Ali case was of a different nature, as the trial was held after his retirement. The judgment stated that his case was different because he was not retired when the crime occurred.
Justice Mandokhail remarked that in this case, the suspects of May 9 riot are not part of the Armed Forces. These days, the term "ex-servicemen" is used, but they were not even ex-servicemen. Let us use the term "civilian."
The justice asked him whether civilians can be tried under the Army Act. Is this only for specific civilians? The counsel replied that the general impression is different, but the justice intervened and repeated his question: “can civilians be tried or not?”
Justice Naeem Akhtar Afghan said that the five-member bench had declared some provisions of the Army Act void. If we also keep these provisions void, civilians cannot be tried in special courts. If we reach another conclusion, we will have to decide which civilians can be tried in special courts.
Justice Afghan stated that there have been amendments to the Official Secrets Act in 2023. He asked how these amendments should be considered.
Justice Mazhar stated that there are some questions that will be taken up tomorrow and the hearing was adjourned.
The seven-member Constitutional Bench, headed by Justice Ameenuddin Khan, and included Justices Jamal Mandokhail, Muhammad Ali Mazhar, Syed Hassan Azhar Rizvi, Musarrat Hilali, Naeem Afghan, and Shahid Bilal Hassan, is hearing the case.
