Islamabad: Judge Jamal Khan Mandokhail The Supreme Court on Monday raised concerns about the extent of the powers of military courts under the Army Act.
A seven-member constitutional bench led by justice amin-far-din Khan heard an intra-man against military court proceedings of civilians, during which the head of lawyer Salman Akram Raja presented the arguments of Arsama Junaid.
During the hearing of Raja, she referred to the FB Ali Brigadier (Retd) FB ALI and stated that the decision was based on the 1962 Constitution, which allowed the Civilian Court to be in military courts only if fundamental rights were provided.
Judge Muhammad Ali Mazhar asked how FB Ali, a civilian was, the court-fought under the same precedent.
Mandokhail’s justice further increased the critical question: “What are the powers of military courts under the Army Act? Can a non -political person be tested only on the basis of their crime? ”
Raja explained that in the case of FB Ali the discussion focused on Article 2 (a). D) (i) of the Army Act and the decision acknowledged that the law brought by the presidential order can be reviewed with regard to fundamental rights.
However, it was also stated that such changes were subject to judicial review under fundamental rights, he claimed.
The Mandokhail justice further asked the definition of “Nexus” in the case of FB Ali. Raja replied that the term referred to the incitement of the armed forces and the explicit connection between crime and Pakistani defense, which was interpreted in a way that a separate court could be created for such cases.
Raja claimed that if the court confirmed the decision of Judge Ayesha Malik on Article 10-A, they would strengthen their case. Similarly, if the court ruled that outside Article 175 (3) (3) would not be possible to establish any special courts, it would still support its attitude.
He also quoted an example of history and noted that FB Ali was convicted by a military court under general Zia-HAQ. After Zia became the chief of the army, he canceled Ali’s sentence, led to the fact that Ali later joined the Canadian army.
Judge Mandokhail noted that Zia later realized that his initial decision was bad, while the judiciary Musarrat Hilali even speculated whether Zia apologized to FB Ali.
When Raja asked at the 1962 Institute Judge Hilalim, he noted that it began with field marshal Ayub Khan, who granted his authority. He stressed that Fatwas had been issued during this period that Islam did not recognize fundamental rights.
He stressed that the judiciary can always check the laws under the fundamental lens.
Judge Mandokhail questioned whether the court could use its powers in this appeal under Article 187, to which Raja replied that the court has always retained the power to ensure complete justice under Article 187.
The Mazhar justice noted that the military law was related to when civilians stimulated military staff. He asked whether Article 10-A of the Right to the Righteous Trial only expanded to civilians or also covered the military staff. Raja claimed that Article 175 (3) would have the same contribution to civilians and military staff.
The justice of Hassan Azhar Rizvi was concerned with fears that foreign intelligence agencies sometimes use civilians and the abolition of the provisions of the Army Act 2 par. D) (II) and 2 (1) (a). D) (II) could prevent military court proceedings for those for whom they work for, for them, hostile entities.
Raja faced this by suggesting a comparative analysis of Indian and Pakistani army events.
He argued that the Pakistani system should not allow a scenario where the sho operates as a judge, SP hears the appeal, and IG confirms this decision.
He pointed out that in India, the appeal of military court proceedings concerns the tribunal, which can also provide bail and ensure the process of a fair trial.
The Mazhar justice then questioned whether the Indian Army Act included provisions of 22 (1) (a). D) (i) and 22 (1) (a). D) (II). Raja admitted that they were not part of Indian law, which forced Mazhar to refuse comparative analysis as irrelevant.
The justice of amin-far-din reiterated that Pakistan and India have separate legal systems. After hearing today’s arguments, the Top Court postponed this case until 10 February.
