• Justice Amin says they only have to see whether appeal in military trial case is accepted or rejected
• Counsel says nothing stops CB from rejecting ICAs

ISLAMABAD: Senior counsel Khwaja Ahmad Hosain on Monday urged the Constitutional Bench (CB) to speak for the Constitution and rule of law, reminding the bench that past decisions had let the nation down and caused suffering.

Closing arguments on behalf of former CJP Jawwad S. Khawaja, the counsel said Pakistan was founded by a brilliant lawyer with a firm belief in the constitution and the rule of law.

The seven-judge CB had taken up a set of intra-court appeals (ICAs) against the Oct 23, 2023, five-judge order that had nullified the trial of civilians by military courts in the May 9 violence case.

The counsel said that for the sake of the country’s future the bench should stand by the brave decision of their colleagues (Oct 23 judgement) by dismissing the appeals instituted by the ministries of defence, interior and the federal government.

He argued that there was no precedent which stops the CB from holding the court martial of civilians as unconstitutional and striking down Section 2(1)(d)(i) and (ii) of the Pakistan Army Act (PAA), 1952.

While citing the Brig F.B. Ali case, the counsel said that the judgement was not an authority for the proposition that court martial of civilians was fair. He pointed out that F.B. Ali’s court martial was presided over by Maj Gen Ziaul Haq, who later became a full general and then chief of army staff.

The counsel highlighted that on the passing of the Rowlatt Act 1919, Quaid-i-Azam Mohammad Ali Jinnah had tendered his resignation from the Central Legislative Assembly. The Rowlatt Act replaced judicial officers with executive officers, permitted speedy trials, allowed trials to take place without a jury and sanctioned internment of suspects without a trial.

The slogan to resist the Rowlatt Act was “no appeal, no vakeel (lawyer), no daleel (argument)”, said the counsel, adding that the same slogan holds true for the court martial of civilians now.

Penalty recalled

Meanwhile, the CB recalled the penalty of Rs20,000 it had earlier imposed on the petitioner seeking deferment of ICA hearings until the validity of the 26th amendment was determined. The bench had rejected the plea by declaring it frivolous and had imposed the Rs20,000 fine.

Justice Jamal Khan Mandokhail observed that in the 21st Amendment, political parties were kept out, but said the only question before the bench was that on whom the army act will be applicable.

“God forbid, if there will be a simultaneous attack of terrorism on parliament, the Supreme Court and GHQ, the trial of the attack on parliament and the Supreme Court will be conducted in the Anti-Terrorism Court, whereas the attack on GHQ will be done in the military court, when all these attacks should be tried at the same forum. Why and how is the distinction made,” Justice Mandokhail wondered.

The counsel, however, said that the court should not open such a door that would allow a civilian to be tried in military courts.

“We are not opening any door, rather we only have to see whether the appeal is accepted or rejected,” observed Justice Amin-ud-Din Khan, who heads the CB.

While pointing towards the counsel, Justice Syed Hasan Azhar Rizvi observed, was there any difference between those who carried out blasts, those who conspired with anti-national spies, and the ordinary civilians.

The counsel said he was not giving arguments in defence of any terrorist or accused. If court martial of civilians is possible, then the 21st Amendment would not have been necessary, he said.

Justice Rizvi, however, observed that in the 21st Amendment, some crimes were included in the PAA. The counsel, however, said if court martial had been possible by amending PAA, then a constitutional amendment would not have been necessary.

Thus, if court martial is possible, then the court will have to declare that the 21st Amendment was unjustified, he said, adding that Article 175 was also amended in the amendment, besides there was no concept of bail until the verdict in military courts.

At this, Justice Rizvi remarked that speedy trials were conducted in military courts and if the cases were decided in 15 days, then the grant of bail will not matter.

The counsel argued that appeals against military courts do not go to an independent forum and no lawyer of choice was made available.

Advocate Salman Akram Raja, who represented the father of convict Arzam Junaid, argued that all over the world, military trial of a civilian was considered equivalent to destroying the constitution, but Pakistan’s criminal justice system lagged decades behind the world.

There is no question of such trial of civilians in India or Bangladesh since snatching away the civilians’ right was considered to be destruction of the constitutional value system.

He said the F.B Ali case does not say that fundamental constitutional rights do not apply to the provisions of the Army Act. It said the exact opposite and the judgement has not closed the door for examination under fundamental rights.

Published in Dawn, February 4th, 2025