ISLAMABAD: Supreme Court Justice Jamal Khan Mandukhel on Thursday questioned the legitimacy of trying civilians under the disciplinary system of the armed forces while hearing intra-court appeals against the decisions of military courts.
A seven-member constitution bench headed by Justice Aminuddin Khan heard the appeals. Other members of the bench included Justice Mandukhel, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan, Justice Musrat Hilali, Justice Mohammad Ali Mazhar and Justice Shahid Bilal Hasan.
Lawyer Khawaja Haris, representing the federal government, said that the cases revolved around Article 8 of the Constitution.
However, Justice Mandukhel raised critical questions, including: “How can an individual who is not part of the armed forces come under its disciplinary code?” he said, comparing it to departmental codes. : “If someone works in agriculture, they are subject to its discipline, but how does the discipline of the armed forces apply to a civilian?”
In response, Haris said that if the law permits, discipline will be applied.
Justice Hilali pointed out the lack of access to copies of FIRs for those in military custody, while Justice Mazhar probed the grounds on which the former bench had held the Army Act incompatible with Article 8. keep
Then Advocate Haris said that under certain circumstances civilians can also come under the jurisdiction of the Army Act. He further said that the court has no power to declare the provisions of the Army Act null and void.
Justice Mandukhel raised the question whether the Army Act invalidates Section 1 of Article 8 of the Constitution.
He further inquired whether a civilian could be brought under the Army Act by mere consideration of provocation. He questioned whether ordinary citizens can be subjected to the Army Act.
Haris argued that even in military trials, the right to a fair trial under Article 10-A is preserved. Justice Mazhar said that a constitutional bench is hearing intra-court appeals against the decisions of military courts and this bench can review the constitutional points in these appeals.
Justice Mandukhel remarked that if there is an attack on the President’s House, the case will go to the Anti-Terrorism Court. In response, Harris said that lawmakers decided it through legislation.
Justice Hilali inquired whether trials by military courts allow for legal counsel for the accused and whether all relevant materials are provided. Advocate Haris replied in the affirmative, saying that military court trials provide legal representation and necessary evidence to the accused.
Justice Mandukhel asked a hypothetical question that if a soldier kills his officer, where will the case go? Lawyer Haris replied that the case will proceed in a normal court. Justice Mandukhel further inquired as to how those who are not subject to the Army Act can be deprived of their fundamental rights.