ISLAMABAD: The constitutional bench recalled its order imposing fine upon former Chief Justice Jawad S Khawaja for filing a petition to defer the intra-court appeals (ICAs) against the SC’s judgment on military courts till the decision on 26th Amendment by Full Court.
A seven-member SC Constitutional Bench headed by Justice Aminuddin Khan, on Monday, heard ICAs against the apex court’s decision on the trial of civilians by military courts.
Advocate Khawaja Ahmed Hussain, appearing on behalf of the ex-CJP, before concluding his arguments on military courts, requested the bench to take back its order on imposing fine.
The bench on December 9, 2024, imposed Rs20,000 fine on Justice Jawad S Khawaja (retired).
Justice Amin after consulting the members of the bench disposed of the ex-CJP review petition against the 9th December order and rescinded fine.
Khawaja Ahmed earlier contended that the petition had become largely ineffective since the constitutional bench had already heard most of the case. The counsel had filed a separate petition seeking a stay on military court proceedings until a decision was made on the 26th Constitutional Amendment.
Khawaja Ahmed, at the onset of the hearing argued that the SC’s judgments on FB Ali, Sheikh Liaquat Hussain and Rawalpindi District Bar Association cases do not bar the bench from dismissing the ICAs, adding the propriety demands that you should have different point of view.
He said that wisdom of the legislature cannot be interfered by the judiciary, adding that their case is violation of constitutional provision. He submitted that the members of the bench had fundamental duty to take notice of the violation of fair trial under Article 10A of the constitution. “The court has to strike balance between the national security of the country and the fair trial.” He raised question that how the trial in military courts could be termed fair when “there are no arguments, no lawyer and no appeal.”
He contended that in Rowlatt Act, was passed by the British government in India to suppress nationalist protests, and give power to the police to arrest any person without any reason. He said Quaid-e-Azam, under whose portrait you all are sitting, had resigned from the Assembly because of Rowlatt Act. He maintained that Pakistan was created by a brilliant leader, who always believed in rule of law. He urged; “You have chance to speak for constitution and the law. In the past nation suffered due to the bad judgments.”
Barrister Salman Akram Raja argued that the trial before the military court is violative of Article 10A, adding there is no country in the world where civilians are tried by the military courts. Upon that, Justice Muhammad Ali Mazhar said there are few countries where the civilians are tried by the military courts. Raja responded there are two or three countries, but those are in Africa.
He further contended that in India, UK and many other countries for the trial of military personnel special tribunals are constituted. Upon that, Justice Jamal Khan Mandokhail said no military personnel has so far challenged their trial and asked the superior courts they should be tried in civilian courts.
During the proceeding, Justice Mandokhail questioned whether attacks on the Parliament House and Supreme Court will be tried in anti-terrorism courts (ATCs), while an attack on the General Headquarters (GHQ) will be handled by military courts?
Justice Mandokhail remarked that in his view, all three attacks should be treated equally.
Khawaja Ahmad argued that civilians cannot be subjected to court-martial under any circumstances, saying that military courts do not meet the requirements of a fair trial. He noted that all five SC judges — in an earlier judgment — had differing opinions on the transparency of military trials. The lawyer further questioned whether there was no distinction between a terrorist, a spy aiding an enemy, and an ordinary civilian.
Justice Hasan Azhar Rizvi advised the counsel to make a distinction in his arguments, to which, Ahmad responded that he was not defending any terrorist or accused person and asserted that if civilians could be court-martialled, the 21st Constitutional Amendment would not have been necessary.
Justice Rizvi pointed out that the amendment had added certain crimes to the Army Act, while Ahmad countered that if court-martial had been possible before the amendment, then the court would have to declare that the said constitutional amendment was unnecessary.
Justice Mandokhail also noted that the 21st Amendment had excluded political parties from its scope and that the key question before the court was determining who falls within the jurisdiction of the Army Act. Khawaja Ahmad further argued that Article 175 was also amended in the 21st Amendment and that military courts do not provision granting of bail until a verdict had been reached.
Justice Rizvi said that military courts conduct speedy trials, often delivering verdicts within 15 days, making bail irrelevant. He added that appeals against military court’s decisions are reviewed by independent forums and that the accused has rights both before and after sentencing.
Ahmad agreed that the Army Act was well-structured but insisted that its applicability needed clarification. He urged the court not to open the door for court-martials of civilians, as approving the appeal would be against human rights. The case was adjourned until today (Tuesday).
Copyright Business Recorder, 2025
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