ISLAMABAD (Dunya News) – In a landmark judgement, the Supreme Court's constitutional bench on Friday allowed military courts to announce the decisions in the cases of 85 civilians who are in the custody of Pakistan Army.
The constitutional bench, headed by Justice Aminuddin Khan, heard the petition against the trial of civilians in military courts. Other members of the bench are Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Musarrat Hilali, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
KHAWAJA HARIS ARGUMENTS
At the outset of hearing, Defence Ministry's counsel Khawaja Haris came to the rostrum to argue. Justice Mandokhail asked him whether invalidated provisions of the Army Act are in accordance with the constitution. He also questioned whether the Army Act could be amended to bring every individual [civilian] under its purview, considering that the Army Act was enacted before the 1973 Constitution.
Justice Mazhar inquired about the reasons behind declaring the provisions unconstitutional in the judicial decision. Advocate Haris replied that there were flaws in the Supreme Court’s decision.
Justice Mandokhail remarked that the judicial decision should not be disrespected to the extent of calling it flawed. Haris apologized, stating that his words were not legally appropriate.
Justice Mazhar pointed out that he had asked for details regarding the events of May 9. But till now, the case only concerned the Corps Commander House. He asked if the case would be limited to the Corps Commander House.
The Additional Attorney General stated that all the details had been received this morning and would be submitted separately.
Justice Hilali asked what would happen to the trials conducted under the provisions that were annulled. She noted that individuals may have already been sentenced under those provisions prior to May 9.
Khawaja Haris replied that decisions made under those provisions are protected before the provisions are declared void. Justice remarked that this would be an act of discrimination against the accused.
Justice Mandokhail observed that no one joins the Pakistan Army under duress. They are aware that the Army Act will apply to them, and under that law, basic rights are restricted. The Army Act was specifically enacted for the regulations and discipline of military service.
Khawaja Haris replied that no one joins the army with the intention of committing a crime, and fundamental rights are suspended only when a crime is committed.
Justice Mandokhail asked whether the Supreme Court’s review in an appeal would be limited to the petitioner's request, or whether the court could examine other aspects of the decision. Justice Khan responded that while the parties are restricted to their arguments, the court is not.
CONCULDING REMARKS
The bench, in concluding remarks for the day, observeded that the decisions of military courts would be conditional upon the decision of the pending case in the Supreme Court.
The bench ordered that those accused who may be eligible for leniency in sentences would be released, while those who cannot be released will be sentenced and transferred to ordinary prisons.
Later, the bench adjourned the hearing on the case until after the winter break.