Justice Jamal Mandokhail questioned the military trial of civilians in the Supreme Court hearing on the case. He asked whether, in the event of a terrorist attack on Parliament, the Supreme Court, or GHQ, the trials would be handled differently. He wondered if Parliament and Supreme Court attacks would be tried in anti-terrorism courts while a GHQ attack would go to a military court. He said all three attacks seemed similar, so why was there a distinction?
Lawyer Argues Against Military Trials for Civilians
A seven-member bench, led by Justice Aminuddin Khan, heard intra-court appeals against the military trials of civilians. Lawyer Khawaja Ahmad Hussain, representing former Justice Jawad S. Khawaja, argued that civilians cannot be court-martialed under any circumstances. He said military courts lack transparency and violate the right to a fair trial. He pointed out that even the Supreme Court’s five judges did not fully agree on military courts’ procedures. He asked if there was a difference between a terrorist, a spy working against the country, and a regular civilian.
Justice Hassan Azhar remarked that the arguments should make a distinction between different cases. Khawaja Ahmad responded that he was not defending any terrorist or accused individual but standing by the principle that civilians cannot be court-martialed. He added that if civilian court-martials were possible, there would have been no need for the 21st Amendment.
Military Courts and Constitutional Amendments
Justice Hassan Azhar pointed out that the 21st Amendment had included certain crimes under the Army Act. However, Khawaja Ahmad argued that if court-martialing civilians was possible before the amendment, then there would have been no need for it. He said that if court-martialing civilians is now considered legal, the court must declare that the 21st Amendment was unnecessary.
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Justice Jamal Mandokhail also noted that the amendment had excluded political parties. He said the real issue before the court was determining who falls under the Army Act. Khawaja Ahmad responded that Article 175 of the Constitution was also amended in the 21st Amendment. He pointed out that military courts do not allow bail until a verdict is given.
Justice Hassan countered that military courts conduct speedy trials, so if a verdict is given within 15 days, the issue of bail does not matter. He added that appeals in military court cases go to an independent forum and that suspects have rights before and after conviction.
Khawaja Ahmad argued that while the Army Act is well-structured, the question is who it applies to. He urged the court not to open the doors for civilian court-martials. He warned that allowing such trials would violate human rights.
The court later took a short break in the hearing of the case.
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