• As an affected part, the army cannot perform fair procedures, argues the ex-CJP lawyer
• The judge asks how troops will receive justice if PAA sections are considered unconstitutional
• Update 100 preferable criminals to the sentence of an innocent, the Judge Commandkhail observes
Islamabad: The plaintiff’s lawyer opposed the military trials of the individuals involved in the disturbances of May 9 on Friday, saying that in a martial court, the army acts as a prosecutor, judge and jury.
But in the present case, the army was also the affected party, which made such “unfair and unconstitutional” procedures.
Khwaja Ahmad Hosain made these comments when the Constitutional Bank of Seven Judges occupied a set of intra-court (Ica) appeals against the order of five judges of October 23, 2023 who annulled the military trials of civilians involved in the violence of the 9 of May.
During the hearing, Mr. Hosain who represents former CJP Jawwad S. Khawaja, affirmed that article 10-A of the Constitution contained an absolute fundamental right and without diluting due process and a fair trial. This right is not qualified with reference to any reasonable restriction, as is the case with other rights. Therefore, the martial court of civilians violate this right and is unconstitutional, he added.
Judge Syed Hasan Azhar Rizvi, meanwhile, questioned how military personnel, who sacrifices their lives daily at the hands of civil terrorists, would receive justice if the sections disputed 2 (1) (d) (i) and (ii) of the army of Pakistan Law (PAA) 1952 were considered unconstitutional.
“Recently, five army staff lost their lives, while another 13 hugged martyrdom in a different terrorist attack that involves civilians,” said Judge Rizvi and then questioned how terrorism cases could be effectively prosecuted in the Anti -terrorist courts (ATC), given. The challenge of ensuring witnesses.
The main lawyer Khwaja Ahmad Hosain replied that former CJP Ajmal Mian in the 1999 Sheikh Liaquat Hussain sentence had argued that the best response to terrorists was to condemn them in civil courts since questions about the credibility of such convictions could not be asked.
However, Judge Rizvi recalled that the case of Sheikh Liaquat Hussain referred to the incidents of karachi terrorism, but the whole country was witnessing a wave of terrorism and at least two or more provinces were in the control of this threat. Although the country did not face any movement as ‘Mukti Bahini’ today, the entire nation was under siege for civil terrorists, Judge Rizvi lamented.
Judge Jamal Khan Commandkhail observed that acquitting 100 criminals was preferable to sentence a single innocent, since punishing the innocent was a serious injustice and a sin.
Judge Commandkhail also shared his experience when six judges of the Superior Court of Baluchistan were saved simply because an explosive device planted on his way shot five minutes before. If the perpetrators were successful, six judges would have lost their lives, Judge Commandkhail observed, adding that Pakistan is in 130 worldwide in the ranking of the law and justice, since the courts had to acquit the accused due to the absence of witnesses.
However, Judge Commandkhail questioned whether the country had really benefited from the implementation of the 21st amendment, which was introduced to prove terrorists in the military courts and then extended for another two years.
Right to a fair trial
However, the lawyer reiterated the right to a just trial while referring to the press release of May 15 by the ISPR, in which the body commanders had determined that they had “irrefutable evidence” with respect to the incidents of the 9 of May of a coordinated attack against the army. facilities.
In the presence of this finding, it would be a challenge for Junior officers under his command of acquitting any defendant in the martial process of the Court, the lawyer feared. He appreciated the contribution of Shuhuda and agreed that their families deserved justice. But at the same time, the lawyer warned that the defendant and their families deserved justice and a fair trial.
When asked about the state of the Indian spy Kulbhushan Jadhav after the judgment of October 23, 2023 about the demolition of the law, the lawyer replied that his condition did not change since the ruling did not affect any court concluded or in the Martial Court when a review and reconsideration remedy had been provided. Then, the lawyer focused on the provisions of the PAA and the rules of the Army and said that there was no right to advise in a general martial field court.
Although the Army authorities can allow a lawyer, this was to their discretion, and added that it would be a remarkable finding if the Supreme Court in this case would support as a right process in which there was no legal right for a lawyer.
Posted in Dawn, February 1, 2025
