Civilians cannot be tried by military courts, SC told

TERENCE J SIGAMONY

ISLAMABAD: The Supreme Court was told that in the presence of Articles 4, 9, and 10A of the Constitution, there cannot be civilians’ trial by the military courts.

A seven-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, on Wednesday heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.

Abid Shahid Zuberi, who represented some members of the Supreme Court Bar Association (SCBA), expressed sadness over the recent bomb blast in Bannu, in which many people lost their lives. He has concluded his arguments.

Zuberi said the cases of terrorists who attack the military installations are tried in the Anti-Terrorism Courts, but the 9th May protesters’ cases were sent to the military courts. Justice Syed Hasan Azhar Rizvi said they have not yet seen the trial of terrorists.

He said through legislation, a spy, Kulbhushan Jadhav, was given the right of appeal, but no right of appeal to the citizens. The Attorney General for Pakistan has given an undertaking before the court that 103 accused in military custody will have the right of appeal, he added.

Additional Attorney General Aamir Rehman said that the law was passed to provide the right of appeal to Kulbhushan because of the ICJ judgement, and the Vienna Convention mentions consular access. He stated that the writ against the verdict is pending before the Islamabad High Court.

Justice Amin questioned whether Article 175(3), which talks about that the judiciary will be separate from the executive in 14 years, will come through any declaration of the court or legislation is required for this purpose.

Responding to the argument that there are no fundamental rights under Army Act, Justice Muhammad Ali Mazhar said the counsel of the Ministry of Defence had explained that in Manual of Pakistan Military Law many fundamental rights are available to the accused. If some accused don’t get those rights, then it is another thing.

The judge asked the counsel that the petitioners challenge is that the presiding officers in the Court Martial are not independent, and also do not have legal acumen. Zuberi said they were against civilians’ trial by military court because the officers, who conduct trial, are in the discipline of the military, therefore, cannot deliver independent verdict. They are part of the executive, he added.

Zuberi contended that the administration of justice cannot be controlled by the executive, adding the separation of judiciary from executive is the cornerstone of the constitution. Court Martial is not judiciary.

Justice Mazhar inquired from the counsel does he treat the Court Martial as the judiciary, if yes then its consequences are different. He said Justice Munib Akhtar in the impugned judgment has given findings Court Martial.

Justice Mazhar further questioned whether the army officers perform the functions of executive? He said they perform duties under the Army Act. Justice Jamal Khan Mandokhel observed that the military courts are not judiciary; they are only to adjudicate the cases of army personnel pertaining to proper discharge of their duties or maintenance of discipline.

Justice Rizvi then questioned that if an officer work for a foreign spy agency and is involved in anti-state activities then where his trial would be held. Zuberi responded that such trials could be held in-camera within jail by the Anti-Terrorism Court. It was the command of the Supreme Court that no courts outside Articles 175 and 203 shall be formed.

Justice Mazhar inquired whether he wanted military courts under the administration of the executive or the High Court. Zuberi responded that the answer of the question is in Supreme Court’s judgment in the Rawalpindi District Bar Association case. He argued that Court Martial should hold trial only of those persons, who are subject to Army Act.

Justice Mazhar asked the counsel that his argument should have been that if military courts hold civilians’ trial then there should be an appeal against their (MC) order. He noted that there is no clarity in any judgments of the Supreme Court regarding the trial of civilians by the military courts. There is no judgment, which clearly says that civilians should not be tried by the military court.

The case is adjourned until Thursday (March 6) and Hamid Khan will start his arguments.