ISLAMABAD: The Constitutional Bench questioned whether the military courts also come under Article 175(3) or these are different.
A seven-member Const-itutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, on Wednesday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.
Justice Mussarat Hilali asked Khawaja Haris that when you say that under Article 175(3) of the Constitution those courts were separated from the executive which are under direct control and supervised by the High Courts. She further asked whether the military courts also come under Article 175(3) or these are different.
Justice Jamal Khan questioned whether any forum could be created which does not fall in the ambit of Article 175, but is set up for the trial of the members of the armed forces. He noted that the Court’s attention was drawn toward an observation made in FB Ali case regarding Article 6(3)(a) of 1962 Constitution, which in 1973 Constitution is Article 8(3).
Justice Muhammad Ali Mazhar said FB Ali judgment is not impugned before the constitutional bench; therefore, asked the Defence Ministry’s counsel that dissecting the FB Ali judgment will create further complications, adding the impugned judgment has not given importance to the FB Ali case, but much emphasis was laid on fair trial.
Justice Amin remarked that the respondent lawyers told the Court to come out of FB Ali and Liaquat Hussain judgments, as the Supreme Court has vast power to declare that the civilians cannot be tried by the military courts.
Khawaja Haris, representing Ministry of Defence, argued that once a person becomes subject of the Army Act then his fundamental rights under Article 8(3) cannot be examined. He said the members of armed forces duties are not only maintenance of discipline but also to prevent others to interfere in discharge of their duties. If a person commits an offence which is subject to the Act then he be tried by the military courts.
Khawaja Haris said the apex court’s judgment in FB Ali case is in the field, adding the Court did not strike down the provisions [2(1)(d)] of the Army law on the basis of the fundamental rights. He said civilians’ fundamental rights are not violated if their trial is conducted by the military courts. He said if any case falls under Article 8(3) then talking about fundamental rights is out of question. The case was adjourned until Thursday (March 13).
Copyright Business Recorder, 2025
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