ISLAMABAD:
Justice Muhammad Ali Mazhar, a member of a Constitutional Bench (CB) of the Supreme Court, has observed that in its verdict in the FB Ali case, the apex court had stated that Parliament could review the matter in two years but Parliament never did that.
A seven-member CB led by Justice Aminuddin Khan on Monday resumed hearing the intra-court appeals filed by the government against an order of a five-member SC bench that in October 2023 declared the military trial of 105 May 9 rioters null and void.
Hamid Khan continued his arguments, contending that military courts could not conduct trials of so many civilians. He also argued that a military court could not be formed without a constitutional amendment.
Justice Muhammad Ali Mazhar inquired where an appeal could be filed against military court decisions following the 26th Constitutional Amendment passed in October last year. Hamid Khan replied that a review petition could be filed in a high court, though its jurisdiction is limited.
“In the FB Ali case decision, it was stated that Parliament could review the matter within two years; however, Parliament has done nothing about it so far,” Justice Mazhar noted.
In the FB Ali case, a 5-member bench of the SC declared trials of civilians under Section 2(1)(d) of the Pakistan Army Act, 1952 to be legal.
The Supreme Court held that the only nexus that needed to be established for “civilians or persons who have never been, in any way, connected with the Army” to be subject to the Pakistan Army Act was that “they should be persons who are accused of seducing or attempting to seduce any person subject to the Army Act from his duty or allegiance to the Government.”
During the argument, Justice Jamal Mandokhail noted that the question was as to what would happen if civilians commit crimes mentioned under the Pakistan Army Act, 1952.
“Can the jurisdiction for crimes under the Army Act be extended to civilians or not?” Justice Mandokhail also asked whether the judiciary would issue a declaration to separate itself from the executive, or if Parliament would do so.
Hamid Khan responded that the words of the Constitution are clear and there is no need for a declaration from Parliament. Later, the Defence Ministry’s lawyer, Khawaja Haris, appeared on the rostrum. Justice Aminuddin Khan asked as to how much time he would need in responding to the argument presented against military courts.
In response to a question of Justice Masarat Hilali, he said it might indeed take a week to submit his replies. The hearing was later adjourned till today.
