Islamabad:
The judge of the Supreme Court Musarrat Hilali asked if article 8, paragraph 3, of the Constitution also applies to civilians, noting that the said article is included in the Constitution only to discipline the members of the armed forces.
“The Constitution includes this provision just to ensure discipline among the members of the armed forces. When it is clear that it relates only to members [of armed forces] So what’s left [for imagination]? “The judge noted on Friday.
Judge Hilali was part of a bench for the constitution of seven members (CB) of the Supreme Court, which hears intra-curtly appeals filed against a previous ordinance of the SC which prohibited the May 9 trial of the rioters by military courts under the 1952 Pakistani army.
Article 8, paragraph 3, of the Constitution deals with exceptions to the general rule that incompatible laws or in derogation from fundamental rights are zero.
He specifically exempts the laws related to the armed forces, the police and other disciplinary forces of the protections of articles 8 (1) and (2), as long as these laws relate to the exercise of their functions or to the maintenance of the discipline in their ranks.
Judge Naeem Akhtar Afghan also agreed with judge Hilali and said that article 8 (3) only applies to members of the armed forces. “If it applied to civilians, it would have been clearly mentioned [in the said article]”He said.
According to the Afghan judge, during the eras of the martial law, a number of things were included in the Constitution. Later, the political government modified the Constitution to relaunch it in its original form. However, governments did not affect the Pakistani army law, 1952.
On Friday, during the hearing, the lawyer for the Ministry of Defense, Khawaja Haris, finished his arguments before the bench led by Judge Aminuddin Khan.
In his response, Haris said that before, there was no provision for appeal against the order of a military court. However, people faced with military trials then had the right to appeal when the question reached the Federal Court of Sharia law. The court judged that a right of appeal had been prescribed by Sharia law.
Judge Hasan Azhar Rizvi asked Haris how 105 people had been “chosen and chosen” for a military trial from thousands of people accused of resorting to violence after the arrest of former Prime Minister Imran Khan on May 9, 2023.
Khawaja Haris said that it was not a question of choosing and choosing and that the cases were sent back to the anti -terrorist courts (ATC) or to the military courts according to their nature.
When the lawyer argued that the court martial is approved by the Constitution, judge Jamal Khan Mandokhail warned him that the outcome of the case could be even greater than a simple proscription of the military trial of May 9 accused. He said that by virtue of article 2 of the Constitution, there are only two types of courts: subordinate courts and upper courts.
Judge Hilali noted that article 2 (1) (d) (1) had been added to the 1952 Pakistani army law later in 1967. She declared that the 1952 law of the Pakistani army at the counter-constitution which, according to her, was very tenacious “.
Article 2 (1) (d) (1) of the 1952 law of the Pakistani army defines the individuals subject to the law, including those who have not been otherwise subjected but accused of certain infractions concerning defense establishments or the armed forces.
More specifically, he includes individuals accused of offenses under the official law on the secrets of 1923, linked to defense, naval, military or air issues.
Judge Hasan Azhar Rizvi said 12 to 13 military installations had been attacked on May 9, 2023 and that these attacks were a security failure.
“At that time, measures were taken against military officers. Did an institution held a responsible military officer of May 9?” He asked.
The additional prosecutor general replied that the attorney general of Pakistan Mansoor Awan will answer this question at the next hearing. The court then postponed until April 28.
