ISLAMABAD – Justice Jamal Mandokhail of the Supreme Court (SC) remarked that the FB Ali case referred to Clause D which ensured that the civilians would have the basic rights under it.
Justice Mandokhail asked, “So, in the context of the FB Ali case, how can civilians be tried in military courts with Clause D in place? This is the question that is stuck in my mind,”.
The top court judge gave these remarks during hearing of a plea against civilians’ trial in the military courts.
A SC constitutional bench headed by Justice Amin-ud-Din Khan is hearing the case.
Ministry of Defence’s lawyer Khawaja Haris started his arguments, saying that Salman Akram Raja and Wazir Bhandari had discussed the FB Ali case in their arguments, and now he would present the relevant paragraph of the FB Ali case.
Justice Naeem Akhtar Afghan remarked that the FB Ali case decision was made under the 1962 Constitution, and the FB Ali case cannot be viewed in the context of the 1973 Constitution.
Khawaja Haris argued that the paragraph cited by the other side in the FB Ali case, on which the arguments were based, was ineffective. Justice Jamal Mandokhail remarked that this means you are challenging the FB Ali case as well.
Khawaja Haris said that in the Supreme Court decision being appealed against, the same was written: the FB Ali case stated that military trials are fine and the right to a fair trial is guaranteed.
Justice Jamal Mandokhail said that under Article 8(3) A of the Constitution, the laws in that context do not apply basic rights, and such laws cannot be declared void in terms of basic rights. Article 6 of the 1962 Constitution and Article 8 of the 1973 Constitution state that the FB Ali case says basic rights do not apply to members of the Armed Forces.
Justice Jamal Mandokhail again remarked that the FB Ali case refers to Clause D, which ensures that civilians will have basic rights under it. So, in the context of the FB Ali case, how can civilians be tried in military courts with Clause D in place? This is the question that is stuck in my mind.
Khawaja Haris said that if we assume that Article 8(3) A of the Constitution also applies to civilians, then civilians would not have basic rights either. In this context, the Supreme Court would consider this 184(3) petition as non-maintainable. The way the other side presented the FB Ali case in their arguments was unfounded.
Justice Jamal Mandokhail said that it is not necessary for the Supreme Court to rely on the arguments of any party. When the SC sat, it can exercise its full power to deliver justice.
SC questions military courts’ jurisdiction over civilian trials
