ISLAMABAD: Advocate Khawaja Ahmed Hussain, the counsel for appellant retired Justice Jawad S. Khawaja, said that civilians cannot be court-martialled under any circumstances and the procedure of military courts is contrary to the provisions of a fair trial. 

Advocate Hussain was arguing before a seven-member bench of the constitutional court of Supreme Court during the hearing of intra-court appeals against the trial of civilians in military courts.  Headed by Justice Aminuddin Khan, the bench included Justices Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Musarat Hilali, Naeem Akhtar Afghan and Shahid Bilal Hassan.  Justice Rizvi questioned him whether there was no difference between those who carry out [bomb] explosions and ordinary civilians? Advocate Hussain responded that he was not arguing in defence of any terrorist. If civilians could be court-martialled, he argued, the 21st constitutional amendment would not have been necessary.

  Justice Rizvi responded that there was no need of bail if a decision is pronounced within 15 days. Justice Mazhar asked the counsel to limit his arguments to whether the decision was correct or not.  Justice Rizvi told Advocate Hussain that he gave the reference of Sheikh Liaqat Hussain case, where there was no direct conflict between the public and the army at the time. There was apparently an incident happened in Karachi where a major was abducted.  Justice Mandokhail remarked that political parties were excluded in the 21st Amendment, and the only question before the court is the application of the Army Act. The court raised a question that in case of a terrorist attack on parliament, the Supreme Court, and the GHQ, the trial for the attacks on Parliament and the Supreme Court would take place in the anti-terrorism court, but the attack on GHQ would go to a military court. All three attacks are the same, so why and how are they being differentiated? Justice Hilali asked him whether protest is a crime in this country.

Advocate Hussain replied that it’s not, but damaging property is. The question is; if there is no court-martial, will the accused be set free? The answer is; no, because the Anti-Terrorism Act is there. Later, bench withdrew order imposing fine on ex-chief justice Jawad S. Khawaja and adjourned hearing until Tuesday.