The constitutional bench of Supreme Court has observed that while the Army Act is a val-id law, a question still remains about the absence of an independent forum for military trials of civil-ians.
These comments were made during a hearing conducted by a seven-member Constitutional Bench led by Chief Justice Amin-ud-Din Khan on Thursday. The bench was reviewing intra-court appeals related to the Supreme Court’s decision regarding the trials of civilians by military tribunals.
At the hearing, Justice Jamal Khan Mandokhail raised doubts about whether the Constitution permits civilian trials through military tribunals, with the exception of Article 175(3). Noting that this situation represents an unprecedented issue, he pointed out that the ruling from the F.B. Ali case does not fully address the current circumstances since it originated under the 1962 Constitution rather than the 1973 version, which includes numerous provisions for fair trials. He mentioned that today’s legal framework encompasses Article 10A concerning fair trial and due process rights.
Khawaja Haris, who spoke for the Ministry of Defence, argued that trying civilians in military courts serves as an auxiliary or secondary role. During the session, Justice Muhammad Ali Mazhar highlighted that 'Defence of Pakistan' and 'Defence Services of Pakistan' represent distinct ideas.
Justice Musarat Hilali raised concerns about the absence of a permanent court under the Army Act. Recalling instances, she mentioned that the Peshawar High Court had frequently overturned decisions made by military courts. She added that these interventions occurred due to the constitutional authority vested in the high court.
Kh Haris stated that should the Parliament desire, it has the authority to reformulate or reinvent the military judicial framework. He emphasized that everyone seeks an autonomous platform; however, this must be within the bounds of the Constitution, specifically for those jurists who have sworn to uphold and safeguard the constitutional principles.
Haris stated that only individuals capable of impacting the armed forces or national defense through their actions could be subject to trial by the military. He pointed out that previous rulings involving larger benches have established that military tribunals do not fall under Article 175(3) of the constitution. Haris also questioned whether the current panel could deviate from these prior decisions without potentially nullifying them, noting specifically that a nine-judge bench previously determined that neither Article 175 nor Article 203 pertains to military courts.
Justice Muhammad Ali Mazhar stated that numerous rulings from the Supreme Court regarding military courts have been made, yet none of these decisions excluded military courts from the purview of Article 175(3).
Justice Naeem Akhtar posed a question to the counsel regarding the mention that trespassing into restricted zones outlined in the Official Secrets Act is also punishable under the Army Act. He pointed out that cantonments are deemed as such restricted zones, with some requiring specific permits for entry. Justice Akhtar further explained that if someone were to enter one of these particular cantonment regions without obtaining this required permit and did so forcibly, they could be charged under Section 2(1)(d) of the Army Act.
He added that numerous business centers, malls, and food courts have been set up in the cantonment areas of Lahore, Gujranwala, and Rawalpindi. If someone wishes to enter these cantonments and forcibly gains access when denied entry, they could face charges from military authorities for entering without permission.
Justice Muhammad Ali Mazhar mentioned that not all cantonment areas are considered prohibited zones. He pointed out that Clifton in Karachi, which has numerous shopping malls and business centers, falls within a cantonment zone yet remains outside of the restricted category. Additionally, Justice Syed Hassan Azhar Rizvi, hailing from Karachi as well, noted that all anti-terrorism courts in his city are located in cantonment regions. Furthermore, he highlighted that there are seven cantonments across Karachi, frequented by residents regularly for various purposes.
Justice Mandokhail stated that entering the Cantonment Area in Quetta is not permitted, and conflicts between residents and law enforcement occur on a daily basis.
Justice Mazhar stated that individuals are prevented from accessing regions where military installations and weaponry are present, as these zones are declared off-limits via official notifications.
On Thursday, the representative from the Ministry of Defence informed the court that they would conclude their rebuttal arguments by April 15.
Subsequently, the bench postponed the hearing of the case until April 15.
Provided by SyndiGate Media Inc. Syndigate.info ).
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