Khawaja Haris, counsel for the Ministry of Defence, on Thursday said that the five-member bench of the Supreme Court (SC), which declared the trials of civilians in military courts null and void, had made a flawed interpretation of Article 233 of the constitution, reported 24NewsHD TV channel.
During the hearing of intra-court appeals filed against the apex court’s five-member bench’s decision, Haris said that the bench was under the impression as if basic rights of citizens had been suspended. “These rights had been suspended during an emergency,” he added.
A seven-member bench of the SC’s constitutional bench, headed by Justice Aminuddin Khan, heard the appeals.
Justice Muhammad Ali said the case had nothing to do with the suspension of rights.
Justice Aminuddin remarked that neither the case had anything to do with an emergency.
Justice Mazhar opined that there should be an emergency in the country for the suspension of rights. “This case is completely different,” he said, and added, “Here the bench is to determine whether civilians can be tried in military courts.”
The judge went on to say that there existed the SC decisions which said that it could use its powers.
Justice Aminuddin said that rights are only suspended. “But this does not imply they cannot be defended in courts.”
Justice Musarrat Hilali said that neither the rights of citizens were suspended nor there was an emergency in the country at the time of the arrests of May 9 suspects by the military.
Justice Mazhar remarked that in clause-II of Article 233 there was no mention of suspension of rights.
Justice Jamal Mandokhel also said nowhere in the article under review it was written that the rights could be suspended. “However the president can order their suspension.”
Haris said he agreed with the observations made by the two learned judges. “However, what the article said was that the rights could be suspended in times of emergency,” the lawyer added.
Recalling a dialogue between a former chief justice of Pakistan Ghulam Muhammad Mirza and a counsel, Justice Mandokhel had said, “Your arguments are good. But I am not impressed.”
“Same is the situation with me in this case,” the judge said to Haris.
Justice Mazhar went on to say that the five-member bench, in its verdict, had declared clause 2-D of the Army Act null and void.
“What impact will it have? Can Indian spy Kulbhushan Jadhav now be tried in a military court?” he questioned.
Haris replied, “No sir! Now even he cannot be tried in a military court.”
Justice Mandokhel asked why not the prosecution was being strengthened in the country.
Justice Hassan Azhar Rizvi said that the GHQ had been attacked previously too. “Several people had lost their lives then,” he reminisced.
Similarly, he went on to say, an attempt was made to hijack a former army chief’s plane while he was on a tour to Sri Lanka.
He ordered the provision of data related to both incidents.
Justice Hilali asked how it would be determined that this suspect would be tried in a military court while the other in an anti-terrorism court (ATC).
Justice Naeem Akhtar Afghan remarked that 103 suspects in the May 9 cases were tried in military courts. “But the remaining in ATCs. How did the authorities make the distinction between those whose cases were referred to military courts and those whose cases were sent to ATCs?” he questioned.
“Can you please provide us with a copy of the ATC’s decision in which it had been ordered that the suspects in the May 9 cases be handed over to the army?” he questioned.
Concurring with Justice Afghan’s remarks, Justice Mandokhel and Justice Mazhar also asked on what basis the cases were referred to military courts.
Justice Hilali said that the FIRs registered against the May 9 suspects must be similar. “What was the criterion for trying some of them in military courts while others in anti-terrorism courts?” she questioned.
“What different they had done that their cases were sent to military courts for trials,” the judge asked, adding, “Just give me one instance in which there was a military trial of a civilian without first holding the constitution in abeyance.”
Justice Mandokhel said surprisingly those who were tried in ATCs were being acquitted, while those in military courts had been handed prison terms. “Is a special proof presented in military courts due to which the conviction rate in these courts is high?”
Justice Rizvi asked whether the May 9 incidents were more serious than acts of terrorism that they merited to be referred to military courts.
Later the court adjourned the case’s hearing until 9:30 AM tomorrow.
Reporter: Amanat Gishkori