- Judge Hilali speculates if Zia apologized to FB Ali.
- Salman Akram Raja today presents arguments.
- Apex has been short of the civil trial affair until February 10.
Islamabad: Judge of the Supreme Court Jamal Khan Mandokhail questioned the extent of the military courts under the army law on Monday.
A constitutional bench of seven members, led by judge Amin-Uud-Din Khan, heard the intra-cost appeal against the military trials of civilians, during which the main lawyer Salman Akram Raja presented arguments in the name of The convicted accused, Arzam Junaid.
During the hearing, Raja referred to the Brigadier case (RETD) FB Ali, claiming that the decision was based on the 1962 Constitution, which only allowed the trial of civilians before military courts if fundamental rights were assured.
Judge Muhammad Ali Mazhar asked how FB Ali, a civilian, was martial by the court martial.
Judge Mandokhail also raised a critical question: “What are the powers of the military courts under the army law? Can a non-military person be judged solely on the basis of his crime?”
Raja explained that in the FB Ali case, discussions focused on article 2 (d) (i) of the army law, and the decision has recognized that the law brought by a presidential order could be examined with regard to fundamental rights.
However, it was also declared that such amendments have been subject to a judicial examination under fundamental rights, he argued.
Judge Mandokhail also requested the definition of “Nexus” in the FB Ali case. Raja replied that the term referred to the incentive of the armed forces and an explicit link between the crime and the defense of Pakistan, which was interpreted in a manner which implied that a separate court could be formed for such case.
Raja argued that if the court has confirmed the decision of judge Ayesha Malik on article 10-A, this would strengthen their case. Likewise, if the court had judged that no special court could be established outside of article 175, paragraph 3, it would always support its position.
He also cited an example of history, noting that FB Ali was sentenced by a military court under General Zia-UL-HAQ. However, after Zia became head of the army, he revoked Ali’s sentence, leading Ali to later joined the Canadian army.
Judge Mandokhail pointed out that Zia could have realized that his initial decision was bad later, while the Musarrat Hilali judge even supposed if Zia had apologized to FB Ali.
Asked about the 1962 Constitution by Judge Hilali, Raja noted that it had started with Marshal Ayub Khan who granted him the authority. He stressed that during this period, fatwas were published by affirming that Islam did not recognize fundamental rights.
He stressed that the judiciary could always examine the laws under the lens of fundamental rights.
Judge Mandokhail asked whether the court could use its powers under article 187 in this appeal, to which Raja replied that the court still retained the power to ensure complete justice under article 187.
Judge Mazhar observed that the Army Act applied when civilians prompted military personnel. He wondered if the law of article 10-A at a fair trial extended only to civilians or also covered military staff. Raja argued that article 175, paragraph 3, should benefit both civilians and the military.
Judge Hassan Azhar Rizvi has feared that foreign intelligence agencies sometimes operate civilians, and that the cancellation of army law clauses 2 (1) (d) (i) and 2 (1) (D ) (ii) could hinder the military tests of those who work for hostile entities.
Raja a at that by proposing a comparative analysis of the acts of the Indian and Pakistani army.
He argued that the Pakistan system should not authorize a scenario where a SHO acts as a judge, a SP hears the appeal and an IG validates the decision.
He stressed that in India, military trial calls go to a court, which can also grant a deposit, ensuring a fair trial process.
Judge Mazhar then asked if the law of the army of India included clauses 22 (1) (d) (i) and 22 (1) (d) (i). Raja admitted that they were not part of Indian law, which prompted Mazhar to reject comparative analysis as not relevant.
Judge Amin-Ud-Din reiterated that Pakistan and India have separate legal systems. The Supreme Court, after hearing today’s arguments, postponed the case until February 10.