SC won’t allow Army to take unconstitutional steps: CJP

ISLAMABAD  -  Chief Justice of Pakistan Justice Umar Ata Bandial Thursday remarked that the apex court will not allow the Army to take unconstitutional steps.

The CJP made these remarks while heading a six-member bench com­prising Justice Ijaz ul Ahsan, Jus­tice Munib Akhtar, Justice Ya­hya Afridi, Justice Sayyed Maza­har Ali Akbar Naqvi and Justice Ayesha A Malik during the hear­ing of the petitions against the trial of civilians by the military courts. During the hearing, the Attorney General for Pakistan (AGP) informed the bench that the military’s top officials and the government are seriously considering to provide right to appeal against the verdict of the military court (MC) to the level of high court.

AGP Mansoor Usman Awan said the that serious consider­ations are being given to deal with the situation at the level of Adjutant General, a 3-Star Gen­eral. The Adjutant General’s of­fice is the directorate where the rules of Army Act examined. He submitted that in the writ petition against the military courts (MC) there will be lim­ited grounds, therefore he had sought some time for the legal instrument (appeal) is provid­ed through legislation. He add­ed that when the appeal is pro­vided to the high court then the judgment of military courts should be reasonable that could stand in the court of law.

Justice Afridi questioned that why the federation is thinking providing the appeal when the military courts in the mean­ing of Article 175 are not the court? The attorney general re­sponded that upon the direc­tives of the Chief Justice certain assurances were giving to the Court and this step (appeal) is in light of that to honour those commitments. Awan said that the petitioner Aitzaz Ahsan, re­mained part of the MRD move­ment, they also protested and never attacked the military in­stallations, but what happened during four hours on May 9 was for the first time in the history of the country. He said that they (PTI workers) attacked Corps Commander House, Ordnance Factory, Mirage base in Mianwa­li, adding that the soldiers had the guns and the sophisticated weapons but they did not use them. It is wrong to suggest that first the FIRs should have been registered and the police take against the protest.

Aitzaz Ahsan, who was also standing at the rostrum, said that why the army men sta­tioned at the military installa­tion did not open fire. The AGP responded that the army is for the protection of citizens and they did not want any such situ­ation to kill his own people.

Aitzaz remarked that the ap­peal will be useless when the person who will conduct the tri­al is in uniform. He said that they (petitioners) are thinking for the future. He stated that how can the PDM government give as­surances when its term will end on August 12. He remarked that whether the government want­ed to bring law for 102 people, arrested in the aftermath of May 9 incidents. He questioned what about other civilians who are or will be tried under Army Act. He contended that the Pakistan Muslim League-Nawaz had set up military courts through con­stitutional amendments. Sardar Latif Khosa submitted that the administration of justice starts with the registration of FIRs. The military courts do not come within the contemplation of Ar­ticle 175 of the constitution therefore are alien to the judicial system. Aitzaz, Khosa and oth­er petitioners’ lawyers request­ed the Chief Justice to hear this matter and conclude within this week. However, the CJP said that the members of this bench have to go on summer vacations. Jus­tice Bandial expressing grati­tude for their cooperation said; “The court and the country are going through a difficult time, and you have witnessed that. You stretched out helping hand and made this Court function.” He said that whatever happened on May 9 is very serious, add­ing that never ever want that the members of the Armed Forces shoot our own people, they are to defend the country. He said that the rioters set ablaze a Mi­rage plane at Mianwali Airbase. He added, “This is very serious.” When Khosa said that even if the Court has to sit on Saturday and Sunday it should do it because the issue is very sensitive. Upon that the chief justice said one member of the bench serious­ly need to going as he has some personal work, while another member has spent all his holi­days here (Islamabad). He fur­ther said that there was a further need to hear attorney general’s arguments but contended that the court would not be able to do so for at least two weeks due to the unavailability of judges. “AGP sahib, no military trials of civilians will be conducted,” he told Awan. The latter respond­ed in the affirmative and added that assurances were given over the same. Earlier, during the pro­ceeding, Justice Afridi asked the AGP about his opinion on Ar­ticle 175 and Article 175(3) of the Constitution, which refer to the establishment and jurisdic­tion of courts. The AGP respond­ed that “Court martial does not fall under the jurisdiction of Ar­ticle 175.” At this, Justice Ayesha asked if there was any other pro­vision in the Constitution on the basis of which the AGP was ar­guing. Justice Munib maintained that fundamental rights could not be left to the “discretion of the legislature”. “It cannot be that House includes some offences in the Army Act while the other re­moves or adds others offences,” he asserted. “The concept of fun­damental human rights is such that the state cannot take them back even if it wants to,” Justice Akhtar pointed out, adding that fundamental rights had been guaranteed by the Constitution. Justice Ayesha also said here that access to justice was a part of fundamental human rights. “If military courts are not courts of law, then trials in them are tan­tamount to the denial of funda­mental rights,” she added.