Advocate Khawaja Ahmed Hussain, the counsel for appellant Justice (R) Jawad S. Khawaja, said on Monday that civilians cannot be court-martialled under any circumstances; the procedure of military courts is contrary to the provision of a fair trial.
Advocate Hussain was arguing before a seven-member bench of the constitutional court of Supreme Court during the hearing of intra-court appeals against the trial of civilians in military courts.
Headed by Justice Amin-ud-din Khan, the bench included justices Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.
Advocate Hussain submitted that all five judges of the Supreme Court who gave verdict against the trial of civilians in military court did not agree that the trial procedure in military courts is transparent.
Justice Rizvi questioned him that is there no difference between those who carry out [bomb] explosions and ordinary civilians? Advocate Hussain responded that he was not arguing in defense of any terrorist or accused. If civilians could be court-martialed, the 21st constitutional amendment would not have been necessary.
The court remarked that the 21st Amendment only included certain crimes under the Army Act, to which Advocate Hussain responded that if the amendment to the Army Act had made court-martial possible, there would have been no need for a constitutional amendment. He argued that if court-martial was possible, the court would have to declare the 21st Amendment unnecessary.
The counsel submitted that the Article 175 was amended through 21st Amendment. There is no concept of bail until a decision is made by military courts. Justice Rizvi responded that there was no need of bail if a decision is pronounced within 15 days.
Advocate Hussain replied that in military courts, appeals do not go to an independent forum; and defendants cannot choose a lawyer.
Justice Mazhar asked the counsel to limit his arguments to whether the decision was correct or not.
Justice Rizvi told Advocate Hussain that he gave the reference of Sheikh Liaqat Hussain case, where there was no direct conflict between the public and the army at the time. There was apparently an incident happened in Karachi where a major was abducted.
Justice Mandokhail remarked that political parties were excluded in the 21st Amendment, and the only question before the court is the application of the Army Act.
The court raised a question that in case a terrorist attack on parliament, the Supreme Court, and the GHQ, the trial for the attacks on Parliament and the Supreme Court would take place in the anti-terrorism court, but the attack on GHQ would go to a military court. All three attacks are the same, so why and how are they being differentiated?
Advocate Hussain requested the court not to open the door for civilians to be tried in military courts. Justice Ameen-ud-Din Khan remarked “we are not opening any doors; we are only determining whether the appeal will be accepted or rejected.”
Khwaja Hussain mentioned that the Ministry of Defence’s counsel argued that under Article 184(3), the appeal was not admissible. The lawyer stated that where Article 8, sub-clause 3A applies, the application is admissible. If Article 184(3) cannot apply in this case, it cannot apply in any other case either.
He submitted that Justice Yahya Afridi always advised caution while citing jurisdiction under Article 184(3). In military courts, Justice Afridi had also opined that under Article 184(3), a direct petition was admissible.
