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ISLAMABAD: Supreme Court’s Justice Jamal Khan Mandokhail has questioned whether attacks on the Parliament House and Supreme Court will be tried in anti-terrorism courts (ATCs), while an attack on the General Headquarters (GHQ) will be handled by military courts.
During a hearing on the intra-court appeal against the trial of civilians in military courts on Monday, Justice Mandokhail remarked that in his view, all three attacks should be treated equally.
A seven-member constitutional bench, led by Justice Aminuddin Khan, heard the case, where former chief justice Jawad S Khawaja’s lawyer, Khawaja Ahmad, presented his arguments.
Ahmad argued that civilians cannot be subjected to court-martial under any circumstances, saying that military courts do not meet the requirements of a fair trial.
He noted that all five SC judges — in an earlier judgment — had differing opinions on the transparency of military trials. The lawyer further questioned whether there was no distinction between a terrorist, a spy aiding an enemy, and an ordinary civilian.
Justice Hasan Azhar Rizvi advised the counsel to make a distinction in his arguments, to which Ahmad responded that he was not defending any terrorist or accused person and asserted that if civilians could be court-martialled, the 21st Constitutional Amendment would not have been necessary.
Justice Rizvi pointed out that the amendment had added certain crimes to the Army Act, while Ahmad countered that if court-martial had been possible before the amendment, then the court would have to declare that the said constitutional amendment was unnecessary.
Justice Mandokhail also noted that the 21st Amendment had excluded political parties from its scope and that the key question before the court was determining who falls within the jurisdiction of the Army Act.
Ahmad further argued that Article 175 was also amended in the 21st Amendment and that military courts do not provision granting of bail until a verdict had been reached.
Justice Rizvi said that military courts conduct speedy trials, often delivering verdicts within 15 days, making bail irrelevant. He added that appeals against military court’s decisions are reviewed by independent forums and that the accused has rights both before and after sentencing.
Ahmad agreed that the Army Act was well-structured but insisted that its applicability needed clarification. He urged the court not to open the door for court-martialing civilians, as approving the appeal would be against human rights.
The SC, after hearing the arguments, adjourned the hearing until tomorrow.
