ISLAMABAD, Jun 23 (NNI): The government on Friday informed the Supreme Court of Pakistan hearing a set of petitions challenging the trial of civilians in military courts that the Army has been holding 102 people in connection with attacks on defence installations on May 9 last.
A seven-judge larger bench headed by Chief Justice of Pakistan, Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik took up the case.
During its Thursday’s hearing, the court issued notices to Attorney General for Pakistan Mansoor Usman Awan, Interior Minister, Defence Minister, and other respondents.
The court also directed the attorney general to provide detail of a total number of detained suspects in civil and military custody on account of the May 9 violent incident.
Punjab govt submits data on detainees excluding military arrests
At the outset of the hearing on Friday, the Punjab government submitted a report comprising data on detained persons involved in the May 9 riots.
However, the report does not include the data of those arrested by the military.
According to the Punjab government’s report, a total of 4,119 people have been arrested. 3,050 people including women have been found involved in the May 9 violence. Out of them, 86 are on physical remand, while 2,464 are on judicial remand.
Cases were registered against them under Section 247 and other laws.
On Friday, when the hearing started, civil society lawyer Faisal Siddiqui came to the rostrum and submitted written arguments.
Siddiqui argued that his application is different from the rest of the applications as he would not argue that the trial of a civilian could not be held in military courts under the Official Secrets Act and also would not say that trial by military courts was illegal while he would not even say what happened on May 9.
The lawyer of the civil society said that there are examples in the past of the trial of civilians. Criminal proceedings cannot be conducted in military courts under military regulations, so he did not challenge it and he did not challenge the acquittal of any accused. He said certain persons were selected in the process of handing over the accused to the military.
He argued that the Army Act is being used maliciously. He said that the court was told 15 people would be handed over to the military. Those who will be tried in the anti-terrorism court will have the right to appeal, but those who will be tried in military courts, they have no right of appeal, he added.
Siddiqui cited the cases of Liaquat Hussain, Saeed Zaman and the District Bar Association.
Justice Ayesha Malik inquired in which specific circumstances, a trial could can be held in military courts.
Siddiqui said that court decisions say that there should be a clear distinction and ‘we do not say that people should not have a strict trial, where can there be a stricter trial than the anti-terrorism court’.
Justice Mansoor Ali Shah remarked that due to national security, it was said that the trial was held in military courts. If we go to the limits of the security state, then the trial is mentioned to be held in military courts, the judge added.
Justice Mazahar Akbar Naqvi inquired when the Official Secrets Act was included.
Siddiqui said that the 21st Amendment case was referred by Justice Yahya Afridi, and the decisions of the military courts formed as a result of the 21st Amendment were challenged in the Supreme Court.
Justice Ayesha Malik inquired under what circumstances, civilians could be tried in military courts.
The lawyer said that in the 21st Amendment case, the court had said that the trial must be related to the Army Act.
Justice Yahya Afridi remarked that wouldn’t it be wise that the Attorney General should be asked first how the cases were made?
On which, Chief Justice Bandial remarked that the lawyer should continue with the arguments and the court would listen to the Attorney General after the lawyers. “Maybe the court will give a statement today on the details demanded by the AGP yesterday,” the top judge added.
Siddiqui said that when the court asked that these petitions should not have gone to the high court first, it is a matter of more than one province, one high court could not have jurisdiction, and these petitions could be heard in the Supreme Court.
Justice Ayesha Malik remarked whether his arguments are complete to the extent that the petitions are admissible. The lawyer replied in affirmative.
Justice Ayesha Malik remarked that the nature of charges against those who were handed over to military courts might be different. ‘You are only saying on assumptions that there is no evidence against these people’.
Lawyer Siddiqui said no matter if there is evidence against them, then he would prove that they cannot be sent to military courts.
The Chief Justice remarked to limit his arguments to the relevant points. He said today is reserved for the petitioners to give their arguments till 3 o’clock.
Justice Mansoor Ali Shah remarked that the law does not say that the Official Secret Act would apply only if there is a person working within the military, the act is also applicable to the crime committed within the military limits. He asked the lawyer to explain what procedure is there to declare a person guilty in military courts. The Official Secrets Act also applies to restricted areas, buildings and some civil buildings, he added.
Justice Mazahir Naqvi remarked that he could not even be able yet to make the basic point, when the provisions of the Official Secrets Act were included in the FIRs and if the provisions of the Official Secrets Act were not included in the FIRs, then whether the commanding officer could demand handing over of an accused?
Justice Mansoor Ali Shah remarked that the bench is asking two questions from the lawyer, ‘tell us the process of how the Army Act will be applied, how the decision is reached within the Army that such and such a person is our suspect under the Army Act. Do we have the full details of how the military indicts someone under the Official Secrets Act?’
The judge further asked how does the army decide whether to hold a military trial against such and such a person as an accused.
Justice Yahya Afridi remarked that there is a procedure to make a person accused in the Criminal Code but where is this procedure written in the Army Act?
Justice Munib Akhtar remarked that army rules are designed for the army.
Justice Mansoor Ali Shah remarked that when a person is wanted by the army, what methods does it follow?
Siddiqui said there is no procedure for a complaint or FIR in the Army Act.
Justice Mansoor Ali Shah inquired when a commanding officer goes to a magistrate, on what basis does he go and ask for the accused?
The Chief Justice remarked that the main thing in the remand of the accused is missing, the remand order does not mention how and on what evidence the accused were handed over.
Justice Ijazul Ahsan inquired whether a complaint under the Official Secrets Act is treated as an FIR.
Siddiqui said that the Official Secrets Act is also applicable to civil buildings, on which Justice Ijazul Ahsan remarked that it would become more complicated. |Tell us about the process in these cases,” he asked the lawyer.
The Supreme Court then announced a break for 15 minutes.
When the hearing resumed after the break, civil society lawyer Siddiqui said that the answer of the question regarding how a trial starts in the Army Act, lies in the Army Rules 1954 and the procedure is mentioned in sub-section 13 of Rule 157. Here the incidents happen on the 9th and 10th of May and the handing over of the accused is sought on May 25. Here we don’t even need to go into the facts and there is no reason to seek handing over of the accused.
Justice Mansoor remarked that we would ask the Attorney General for an inquiry before the charge, you are trying to say that apparently there is no charge against these accused.
Siddiqui said that he is saying there should be a strict inquiry before the charge, a strict inquiry should be held first regarding the May 9 accused. He said never in history except in 1998 has a civilian government allowed civilians to be tried in a military court. There is a legal option of trial in other courts. If the case was against an army official, then it was a different matter, now there was no option other than a court martial. In the constitutional amendment, a condition was placed on the trial in military courts, in addition to civilian courts.
After the arguments of civil society lawyer Faisal Siddiqui were completed, the arguments of former Chief Justice Jawad S Khawaja’s lawyer Ahmed Hussain started.
Lawyer Hussain said that the question is whether civilians who are not related to the army can be tried in a military court. He said he is of the opinion that in the current situation, a civilian cannot be tried in a military court, adding that his objection is not that action should not be taken against people.
The ex-CJP’s lawyer said that the question is what is the scope of the army act for the court martial of civilians? The whole purpose of the Army Act is to maintain discipline in the Armed Forces, the Act will apply only to those who have been recruited into a company etc. of the Armed Forces.
The Chief Justice remarked which fundamental rights of the Constitution according to him would be affected by trial in military courts.
Lawyer Hussain said that the rights given in Articles 10, 9 and 25 will be affected, the decision of the 21st Constitutional Amendment does not prevent the same 7-member bench from striking down Section 2 D-1 of the Army Act. If the court considers that its hands are tied after the 21st Amendment, then it can make full court, he added.
Justice Ijazul Ahsan remarked that in the 21st Constitutional Amendment case, the court had said that military courts were for specific situations and in this decision words like war situations were used, the judge said.
Lawyer Hussain said that he did not know whether the present government reckons that we are confronting a war situation today.
After this, the court announced the Friday prayers break till 1:30 pm.
When the court resumed hearing after the Juma prayers break, lawyer Hussain continued his arguments. He said that the basic rights are vanished when the court martial is held. According to Article 10, everyone is entitled to get a transparent trial. Article 25 guarantees the self-respect of every citizen. He said that the court martial blemishes the self-respect of an individual.
Justice Shah inquired whether the court martial is conducted by a team.
The lawyer replied that a team is formed under the head of an officer to conduct the court-martial. He said that if a civilian is court-martialed and found guilty, then an appeal is made to the Army Chief, if the Army Chief also rejects the appeal, there can be a judicial review on limited points in the high court. He said that the court martial was also conducted for Indian spy Kulbhushan Yadav.
Chief Justice Bandial inquired which civilians are being talked about in this case. He remarked that retired military officers are also civilians.
Justice Shah remarked that it seems that the issue of basic human rights is being forcefully brought before the court.
The Chief Justice inquired why is it written in the law that a civilian could be tried in a military court. He remarked that it is not correct to say that civilians could never be tried in military courts.
“If a civilian incites an army man for mutiny then the military court could proceed against him. But, it has to be seen what procedure was adopted to bring the civilians under the jurisdiction of the military courts. It has also to be seen on what basis the judge of an anti-terrorism court has transferred the cases to the military court,” the top judge observed.
Former CJP Jawad S Khawaja’s lawyer completed his arguments.
Then AGP Mansoor Usman Awan came to the rostrum. He told the court that 102 people are in the army’s custody, adding that none of these were women or minors. “No media person, lawyer, minor or women are in the Army’s custody over May 9 incidents,” he added.
The AGP said that authorities suspect that one of the people in custody is below 18 years of age. He said his tests are being conducted and if he is less than 18 years of age, he would be released.
CJP Bandial inquired if it is a policy decision that women and children would not be taken into custody. He asked what is the policy regarding journalists.
He remarked that there are interim governments in two provinces. He asked the attorney general to contact the provincial governments and ask them about the policy regarding lawyers and journalists.
The CJP said that some members of the bench have reservations regarding the treatment of lawyers and journalists.
The court then adjourned the case hearing till Monday (June 26) 9:30am.
Originally, a nine-member larger bench was formed to take up the case which also included Justice Qazi Faez Isa and Justice Sardar Tariq Masood. But before the court resumed hearing, Chief Justice-designate Justice Isa objected to the formation of the bench by the chief justice, saying he did not consider the nine-member bench hearing appeals against military trials ‘a proper court’. He said he was not recusing himself but he would not sit either.
He observed that the larger bench should not take up the petitions until the apex court decided the case about the Supreme Court Practice and Procedure Act.
Justice Tariq Masood also endorsed the views of Justice Isa and recused himself from hearing the case.
The larger bench then left the courtroom despite requests by the lawyer that petitioners and their families risked their lives by filing petitions.
However, after a while, the remaining seven-member bench was reassembled and started hearing the case.
The chief justice ignored a plea seeking issuance of an interim or stay order to halt civilians’ trial in military courts remarking that the court could not do so without hearing the arguments by the AGP.
Saying this, the court issued notices to the respondents and asked AGP to provide complete information about those being tried in civilian and military courts in connection with May 9 incidents. NNI
