Islamabad: Lahore Bar Association lawyer Hamid Khan has completed his arguments in the hearing of the case related to the military trial of civilians.
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A 7-member bench headed by Justice Aminuddin Khan heard the case of the trial of civilians in military courts, in which Advocate Hamid Khan again gave his arguments today. He said that at the previous hearing, he gave arguments on the history of Pakistan. He told about the history of martial law and military courts in Pakistan. He gave arguments regarding martial law and military courts in the historical context of Pakistan.
Hamid Khan said at the beginning of the arguments that in the previous hearing, the Supreme Court’s decision in the Rawalpindi Bar case was placed before the court. The 21st Amendment regarding military courts was challenged in the Rawalpindi Bar case. My arguments today will also be in this regard.
He argued that under no circumstances can civilians be tried in military courts on such a large scale. Military courts cannot be established without a constitutional amendment. Principles have also been laid down regarding constitutional amendments regarding military courts.
Hamid Khan said that a constitutional amendment regarding military courts can be for a specific period. In this case, the right to appeal against the decisions of military courts must also be given. There is no such situation in the current situation.
Justice Muhammad Ali Mazhar inquired that after the 26th Amendment, where can an appeal be made against the decisions of military courts? To which Hamid Khan said that a writ can be filed in the High Court, but its jurisdiction is limited. The army is part of the executive which cannot exercise judicial powers. Leaving aside the Army Act, there is no scope for military courts in the constitution.
Advocate Hamid Khan said that in the past, there was scope in the constitution before the 1973 constitution. Article 245 of the constitution was added in the tenth amendment. Even in Article 245, the army does not have judicial powers.
Justice Jamal Mandokhel remarked that in the FB Ali case, it was decided that the Army Act was made for members of the army. But in FB Ali, it was also said that Section D of the Army Act was not made for this purpose. Now the controversy is that they are saying that in the FB Ali case, trials of civilians were also allowed. You are saying that it was not allowed.
Hamid Khan said that those who argue in favor of military courts are relying on Article 8(3) of the Constitution.
Justice Muhammad Ali Mazhar said that in FB Ali, it was said that the Parliament can review this issue within 2 years. But till date, the Parliament has not done anything on this issue.
Justice Jamal Mandokhel said that the controversy is not whether civilians should be tried in military courts or not, the issue is what will happen if civilians commit crimes under the Army Act? Whether its jurisdiction can be extended to civilians for committing crimes listed in the Army Act or not. Lawyer Hamid Khan said that the provisions included in the Army Act under which civilians are tried are unconstitutional.
Hamid Khan said on this occasion that now I will explain Article 175(3) of the Constitution in my arguments. This article of the Constitution clearly states that the judiciary shall be separate from the executive.
Justice Jamal Mandokhel asked that you tell me who was to separate the judiciary from the executive? Under Article 175(3), the judiciary will automatically be considered separate from the executive? Or will the judiciary or the parliament give the declaration of separation of the judiciary from the executive?
Hamid Khan said that the words of the Constitution are clear, there is no need for a declaration by the parliament.
Justice Muhammad Ali Mazhar said that the majority decision of the Supreme Court said that military courts do not fall under the category of Article 175(3) of the Constitution. In the Supreme Court decision, military courts were seen in a historical perspective.
Justice Jamal Mandokhel said that according to you, under Article 175(3), the judiciary will automatically be a separate concept from the executive. So it means that after 14 years of this article, military courts cannot exist even for members of the army.
Hamid Khan said that military courts can exist only for members of the army.
Justice Muhammad Ali Mazhar remarked that if this is the case, then you will have to accept that military courts are a parallel judicial system. It is very important that Article 175(3) should be clear in this matter.
After the arguments of lawyer Hamid Khan were completed, the lawyer of the Ministry of Defense, Khawaja Haris, came to the rostrum and began his reply. Justice Aminuddin Khan asked how much time he would take for his reply, to which Khawaja Haris said that many important points had come up. Justice Musarat Hilali remarked that it seems that it will take a whole week for you to present your arguments, to which Khawaja Haris said that it might take a week.
Later, the court adjourned the hearing of the case until 11:30 tomorrow.
