Should terror attacks on all institutions be tried similarly? asks Justice Mandokhail

Islamabad: In the Supreme Court's hearing on the case of military trials for civilians, Justice Jamal Mandokhel remarked, "If, God forbid, there is a terrorist attack on Parliament, the Supreme Court, or GHQ, would the trial for the attack on Parliament and the Supreme Court be held in the Anti-Terrorism Court, while only the attack on GHQ would be tried in a military court?"

A seven-member constitutional bench, headed by Justice Aminuddin Khan, heard an intra-court appeal against military trials for civilians. During the hearing, Justice (retd) Jawad S. Khawaja's lawyer, Khawaja Ahmad, presented arguments.

Lawyer Khawaja Ahmad Hussain argued that civilians cannot be court-martialed under any circumstances, as the procedure of military courts goes against the requirements of a fair trial. He stated that all five judges of the Supreme Court did not agree on the transparency of the trial process in military courts, and he asked, "Is there no distinction between bombers, spies collaborating with the enemy, and ordinary civilians?"

Justice Hassan Azhar remarked that the lawyer should differentiate in his arguments. Khawaja Ahmad responded that he was not defending any terrorist or accused person, but if court-martial of civilians were possible, the 21st Amendment would not have been necessary.

Justice Hassan Azhar said that the 21st Amendment only included certain crimes under the Army Act, to which Khawaja Ahmad replied that had court-martial been possible before the amendment to the Army Act, no constitutional amendment would have been needed. If such a court-martial were possible, the court would have to declare that the 21st Amendment was unnecessary.

Justice Jamal Mandokhel said that political parties were excluded from the 21st Amendment. The question before the court is who the Army Act applies to.

Khawaja Ahmad argued that the 21st Amendment also amended Article 175 and pointed out that military courts do not provide the possibility of bail until a decision is made. Justice Hassan responded that military courts are known for their speedy trials, and if a decision is made in 15 days, what difference would it make whether bail is granted or not? He further noted that appeals in military courts are sent to an independent forum, and the accused have rights both before and after their conviction.

Khawaja Ahmad said that the Army Act is fine, but the issue is to determine who it applies to. He requested that the court not open the door to court-martial for civilians, asserting that if this appeal were accepted, it would violate human rights.

Justice Mandokhel responded, "If, God forbid, there is a terrorist attack on Parliament, the Supreme Court, or GHQ, would the trial for the attack on Parliament and the Supreme Court be held in an Anti-Terrorism Court, while the trial for the attack on GHQ would be conducted in a military court? In my view, all three attacks are the same, so why and how should they be differentiated?"

Later, the court adjourned the hearing of the case regarding military trials for civilians for a brief period.