ISLAMABAD: The counsel of Ministry of Defence told the Supreme Court that it is not ego or prestige of army that people are ‘court-martialled’, but this is for the defence and security of the country.
A seven-member Constitutional Bench, headed by Justice Aminuddin Khan, on Thursday, heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts. The bench hinted that at the conclusion of arguments they may pass a short order.
Khawaja Haris, appearing on behalf of Ministry of Defence, pleaded that none of the Supreme Court judgments have denied the constitutionality of Section 2 (1) (d), but have struck down the punishments on the ground of fundamental rights. He said the moment a person become subject to Army Act then he come at par with the members of armed forces.
He said the Court Martial was never subordinate to the High Court, as the appeal against the military courts does not come before the High Court; therefore, they do not fall in the ambit of Article 175 (3) of the Constitution.
Justice Jamal Khan Mandokhail said initially the law was made before partition to control the mutiny, and with the passage of time it was improved and its scope widened. He said no one can be deprived of fundamental rights, adding even an army officer can say that he has no objection that he be tried before the military court but still he can demand fundamental rights.
Haris said let the legislature decide whether Section 2 (1) (d) could be used for the trial of civilians. Justice Jamal then said the legislature is bound by the constitution, it has to work within the four corners of the constitution, which is supreme and everyone has to follow it.
Haris replied that the Court has to see the constitution holistically, adding the Parliament has to legislate, and has to see what is necessary for the proper discharge of duties and maintenance of discipline by the members of the armed forces, and how this objective is achieved. It is the power of Parliament to include Section 2 (1) (d) in the Army Act, while the Court can see whether it conflicts with the constitutional provisions.
Justice Mandokhail said that the Parliament has made the test for violation or attacking the military installation and proposed the sentences. Haris contended that the purpose of law (Army Act) is specific, but it also warned about the consequences of violating the law.
He said that the impugned judgment of Justice Munib Akhtar did not discuss the civilians’ fundamental rights; while the judgments of Justice Ayesha A Malik and Justice Yahya Afridi wanted that the accused (9th May victims) must have due process and fair trial under Article 10A.
The counsel argued that they (impugned judgments) have excluded Article 8 (3) on the touchstone of Article 8 (5) of the Constitution, and stated this way Article 10A becomes effective and the petitions filed under Article 184(3) are maintainable.
The case is adjourned until April 7. Haris will continue his arguments on the next date of hearing.
Copyright Business Recorder, 2025
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