Is trial of civilians in military courts in accordance with 1973 Constitution? Justice Mandokhail
Pakistan
Advocate Haris submitted that it is up to the parliament to decide on whom the law is to be applied
ISLAMABAD (Dunya News) – Justice Jamal Khan Mandokhail on Thursday posed another question during hearing of intra-court appeal; whether the trial of civilians in military courts is in accordance with the 1973 Constitution?
Justice Mandokhail sought an answer from counsel for Defense Ministry Khawaja Haris while referring to the 1962 Constitution and FB Ali case.
A seven-member constitutional bench headed by Justice Amin-ud-Din Khan and including Jsutice Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan is hearing the appeal.
Justice Mandokhail observed that if we agree to the assumption that under the 1962 Constitution, a civilian can be tried in a military court; but we have to see what is the provision in the 1973 Constitution regarding military trial of a civilian.
“Is this court martial in accordance with Article 175(3) and Article 10A?”
Advocate Haris submitted that it is up to the parliament to decide on whom the law is to be applied and how it is to be applied. Justice Mandokhail replied that in his opinion, the Constitution of Pakistan is supreme because parliament is also subject to the Constitution.
Khawaja Haris said that instead of a single clause, the Constitution should be looked at in its entirety. It is the job of parliament, not the judiciary, to determine the criteria for the application of a law.
Justice Mandokhail asked him whether parliament could add more provisions to the Army Act [for trial of civilians]. Khawaja Haris replied that this question is not before the court.
The [original] decision should not have mentioned Article 8(5) of the Constitution, he stated.
The court observed that Article 8(3) provides for waiver of fundamental rights. The question is whether this waiver is only for the armed forces or can its jurisdiction be extended to civilians also.
Khawaja Haris said that Article 8(3) of the Constitution is not only for members of the armed forces; civilians can also be brought under it.
Justice Mandokhail said that we agree with you to the extent of Article 8(5). Justice Hilali quickly retorted and told him that "we do not, but you agree with it."
She said the case has been going on since last year and she has not yet got an answer to the question; do military courts fall under the category of Article 175? Is a military court also a court of the same standard as a [civil] court?
Khawaja Haris said he would discuss this point later, but first I have to satisfy the judges on Article 8. Justice Hilali again quick to ask "When will these judges be satisfied?" the coutroom burst into laughter on her remark.
Justice Mazhar said that he had told her that there was a point in the arguments in this regard.
Later, the court adjourned the hearing until April 7.
