Civilian trial case: Military law clashes with Constitution, remarks Justice Hilali

• Court martial was implemented during peace times too: Haris.
• Says a fair trial occurs in court martial proceedings as well.
• Justice Rizvi asks if accountability happened about May 9 events.

ISLAMABAD: During the Supreme Court hearing on appeals challenging the civilian trials in military courts, Justice Musarrat Hilali on Friday said that "military law clashes with the Constitution".

Khawaja Haris, the counsel for the Ministry of Defence, completed his arguments during the hearing today. The attorney general will now present his arguments at the next hearing on April 28.

During the proceedings, Justice Hasan Azhar Rizvi questioned the criteria for selecting cases for military trials, asking: "How was the pick-and-choose approach applied in these cases?" 

Haris responded that it was not a matter of pick-and-choose, adding, "The crime is viewed according to its nature." He further said that cases are sent to either anti-terrorism courts or military courts based on the nature of the offence.

Justice Hilali asked whether civilians even fall under the purview of military courts, saying that their focus should only be on disciplining members of the forces. "Where it is clear that it [trial] is only for members, what happens there?" she inquired.

Justice Rizvi further questioned the relevance of military law to civilians attacking army installations. Justice Naeem Akhtar Afghan added that the Army Act is specifically for armed forces personnel, and if civilians were to be included, it would need to be explicitly stated.

Justice Afghan also noted that while many aspects of the previous two laws were retained in the 1973 Constitution. He said several things were incorporated into the 1973 Constitution during the martial law periods. Following that, he said, amendments were made to revert the Constitution to its original form after martial law periods, however, the provisions related to the Army Act were not altered in this as well.

Haris said court martial was acknowledged constitutionally, and it was something that was implemented in not just war times but during peace times as well.

Justice Jamal Mandokhail cautioned Haris, saying: "Mr Khawaja, don't let it be that you came to seek forgiveness for prayers and end up with fasting imposed on you."

Justice Hilali pointed out that Section 2(1)(d)(1) was added to the Army Act in 1967, under the 1962 Constitution, while Justice Mandokhail remarked that Article 202 of the Constitution outlines two types of courts: the high court and subordinate judiciary. It was at this point that Justice Hilali remarked that "military law collides with the Constitution". The 1973 Constitution is way more powerful, she added.

Whereas Haris argued that a fair trial also occurs in court martial proceedings and that presiding officers possess legal competence.

Justice Rizvi said 12-13 military installations were attacked, which reflected a security failure. He inquired if any action had been taken against military officers or if any accountability had taken place within institutions regarding the violent events of May 9.

To this query, Additional Attorney General Amir Rehman said that the attorney general would answer this particular question at the next hearing.