May 9 crossed all limits, says CB judge

Salman Raja told to conclude arguments on next hearing

ISLAMABAD:

Judges on the Constitutional Bench of the Supreme Court on Thursday remarked that incidents of May 9, 2023 crossed all limits, and stressed that the court would have to see to the Pakistan law and not any foreign legislation.

During the hearing of the intra-court appeals against the apex court's decision against the trial of civilians in the military courts, the seven-member bench, led by Justice Aminuddin Khan, asked the lawyer Salman Akram Raja to complete his arguments on the next date hearing on February 18.

Raja continued his arguments on Thursday. During the hearing the judges asked Raja several questions about military trials, and the Supreme Court's judgment and the May 9 incidents. In his arguments Raja gave the examples of court martial process in India and Britain.

"We have to look into our own law, not of Britain, you are wasting time," Justice Khan told the lawyer. Raja told the court that he presented the examples of the British law in the context of a free and transparent trial.

Sitting on the bench, Justice Musarrat Hilali said that in the intra-court appeal a request had been made to restore the repealed provisions. Justice Jamal Khan Mandokhail said that the actual question in the case was whether or not a civilian could be court martialed under the current system.

On that Raja replied that court martial of civilians was not possible in any case. He also said that if Article 175(3) of the Constitution had been in place at the time of the FB Ali case, the trial would not have gone to a military court.

Justice Aminuddin Khan said that in the central decision, the FB Ali case had not been declared null and void under Article 175(3). Justice Muhammad Ali Mazhar said that when there was no request to declare the FB Ali case decision null and void in the main case, how the bench could do so in the appeal.

Raja replied that the court's hands were not tied; it could look into the case. On that Justice Mandokhail asked the lawyer as to what extent the bench could go in the appeal. Justice Mazhar remarked that "we can give reasons separately, if we do not agree".

Justice Hilali asked the lawyer whether he admitted that the crime of May 9 had been committed. Raja said that he would inform the court on that. Justice Hilali remarked that limit was crossed on May 9, and now he was remembering the fundamental rights.

Raja argued that Article 184(3) could not be limited, and that the accused had the right to an independent court and a fair trial. Justice Khan remarked that for a fair trial, one would have to go beyond Article 183.

Justice Khan asked if a crime was committed the punishment would be the same, so how there was a military trial, and the other accused were excluded from it. Raja replied that depriving a person of a fair trial by making accusations was a matter of fundamental rights.

Justice Mazhar said that it was not like arresting someone and taking him to a military trial, adding that in a normal FIR, the accused would be arrested on mere allegations. He also said that the old law of the Official Secrets Act was only against espionage, now new crimes had been added to it.

Justice Hilali told the lawyer that when the 21st Constitutional Amendment was passed, his party – the Pakistan Tehreek-e-Insaf (PTI) – supported the establishment of military courts. On that, Raja said that in the court he was not representing any political party.

On that Justice Hilali rephrased her observation, saying that a political party also supported military courts under the 21st Amendment. Salman Akram Raja replied that the party was wrong at that time. To this, Justice Hilali said that how come he said now that it was wrong.

Justice Mandokhel said that one good thing about the 21st Amendment was that it was not applied to political parties. May Allah have mercy on Justice Azmat Saeed, who wrote the decision on the 21st Amendment case. Later the hearing was adjourned until February 18.